CKL BUSINESSES - UPDATED CHEAT SHEET FOR THE NEW COMMERCIAL RENT SUBSIDY PROGRAM - WHAT YOU NEED TO KNOW

  • Reduces commercial rent by 75% if affected by COVID-19

  • Must pay less than$50,000 monthly rent to qualify

  • Must have stopped operating or suffered a 70% reduction in gross revenue

  • Available for April, May and June

  • Landlord must apply

  • Landlord pays 25% of monthly rent; tenant pays 25% to landlord; government gives loan to landlord for remaining 50%

  • Government loan is forgiven if landlord complies with program requirements

  • Must be a written “rent forgiveness agreement”, including a term for no eviction

  • Available to non-profits, etc.

  • More information here: http://wardlegal.ca/31586368607096

If landlord is unreasonable, inflexible (refused to apply to program), available options to defer or avoid commercial rent arrears are here: http://wardlegal.ca/31586368607098

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CKL BUSINESSES - NEW GOVERNMENT SAFETY RULES RELEASED TODAY FOR GRADUAL RE-OPENING - DOWNLOAD YOUR POSTER - WHAT YOU NEED TO KNOW

 

The Ontario government today released new sector-specific safety guidelines to business that will reopen during the pandemic.

They provide direction to those working in manufacturing, food manufacturing and processing, restaurant and food service, and the agricultural sector. These measures build on more than 60 guidelines developed by Ontario's health and safety associations in response to COVID-19 for various sectors such as retail, health care, construction, transportation, police services, firefighters, and transit employees. 

These new sector-specific guidelines feature recommended actions employers can begin to plan for as they prepare to adapt to the new reality during COVID-19, including:

  • Ways to ensure appropriate physical distancing, like eliminating pay-at-the-door options, holding team meetings outdoors, staggering shift times and using ground markings and barriers to manage traffic flow.

  • Changes to the workplace, like installing plexiglass barriers, increasing the air intake on building heating, ventilation, and air conditioning (HVAC) systems to increase air flow, and using boot sanitizing trays.

  • Promoting proper workplace sanitation, providing personal protective equipment, substituting dry dusting with vacuuming, ensuring customer-facing staff are given hand sanitizer, providing a place to dispose of sanitizing wipes, and enforcing handwashing before and after breaks.

The government is also issuing posters to promote a variety of useful safety tips. The posters offer helpful advice on physical distancing and sanitation. They are downloadable from the Ontario.ca website so employers can print and post them in their workplaces.

Starting this week, 58 new inspectors will join the hundreds of existing provincial labour inspectors on the ground. The inspectors, which include workers from the Technical Standards and Safety Authority (TSSA) and the Ontario College of Trades (OCOT), will be tasked with communicating COVID-19 safety guidelines to essential workplaces or enforcing emergency measures, including physical distancing and the closure of non-essential businesses.

Link to the new guidelines: 

https://www.ontario.ca/page/resources-prevent-covid-19-workplace?_ga=2.171714016.1787025216.1588283825-1949137880.1584645365

 

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CKL EMPLOYERS - CHEAT SHEET - WHAT IF AN EMPLOYEE REFUSES TO GO TO WORK? THE BASICS.

WORK REFUSALS BY EMPLOYEES

  • Must be a “danger” to returning to work
  • Employers must fulfill the statutory duty to take any reasonable steps to ensure health and safety in the workplace – More information here: http://wardlegal.ca/31587872329926
  • All governmental orders and health officials’ recommendations should be followed in the workplace – More information here: http://wardlegal.ca/31587872329932
  • Consider thermal testing for employees – must also be mindful of balancing employees’ privacy – More information here: http://wardlegal.ca/31586368607052
  • If a dispute, Ontario Ministry of Labour must be contacted – a binding decision will be made
  • Employees may qualify for a job-protected, unpaid leave of absence under the Employment Standard Act – More information here: http://wardlegal.ca/31587872329926
  • New Infectious disease leave of absence is broad and includes need to care for a dependent, like a child during school closures  
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THE COURT'S RECENT STERN WARNING TO SEPARATED PARENTS - ACT REASONABLY DURING THE PANDEMIC, OR FACE THE CONSEQUENCES SOON

A stern warning recently by the Family Court to separated parents who act unreasonably, uncooperatively or who exercise self-help: 

"So perhaps I can go one step further.  Perhaps I can give high conflict parents a bit of a warning.

 

a.      Just because a Triage judge decides an issue isn’t urgent, it doesn’t mean the issue isn’t important.  It simply means we have to prioritize which issues we currently have the resources to deal with.

b.      The suspension of most court activities during the COVID-19 crisis means that – temporarily -- separated parents are largely going to be on “the honour system.”  

c.      We’re counting on parents to be fair and helpful with one another.  To rise to the challenge and act in good faith.

d.      Because now more than ever, children need parents to be mature, cooperative, and mutually respectful. In these times of unspeakable stress and anxiety, children need emotional reassurance from both parents that everything is going to be okay.

e.      How parents conduct themselves during this time of crisis will speak volumes about parental insight and trustworthiness.

f.      Your reputation will outlast COVID-19.

g.      So please don’t try to take advantage of the current situation.

h.      In the long run, self-help will turn out to be a big mistake."

Case: 

McNeil v. McGuinness, 2020 CarswellOnt 4833 (Ont. S.C.J.) 

 

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CKL UPDATE - THE CERB AND EI - YOUR UPDATED CHEAT SHEET - WHAT YOU NEED TO KNOW

CANADA EMERGENCY RESPONSE BENEFIT (CERB)

  • $500 weekly – maximum of 16 weeks

  • Retroactive to Mar. 15, 2020

  • Available between Mar. 15 and Oct. 3, 2020

  • Must be 15 and Canadian resident

  • Must have declared $5,000 total income in preceding 12 months or in 2019 (including by self-employment)

  • 7, 4-week eligibility cycles or claiming periods

  • Does not need to be consecutive claiming periods – maximum of 16 weeks (4 months) in total during entire period of program

  • Taxable benefit (not deducted at source; must be claimed in next personal income tax filing)

  • When first applying, cannot earn more than $1,000 from other sources for 14 or more consecutive days within the 4-week claim period

  • For future claim periods, cannot earn more than $1,000 income during the claim period

  • Cannot qualify if laid off, but earns income from other work or on reduced hours

  • Cannot voluntarily withdraw or quit – must qualify for an approved statutory leave of absence under the Employment Standards Act or work disruption must be related to COVID-19

  • Cannot be topped up by employers, unless the top up is not more than $1,000 in any 4-week claim period

  • Replaces EI regular benefits if unemployment occurs on or after Mar. 15, 2020

  • Not EI

  • Can collect CERB without affecting future EI benefit eligibility

  • Note: payment of accrued vacation time if a lay off or termination could disqualify CERB (if more than $1,000 within 14 days before initial application or during the subsequent claim period)

  • Note: if recalled during a CERB claim period, resulting in income more than $1,000, may be required to repay the CERB during that claim period

Examples:

  • Salaried employee (including self-employed) – eligible if stops working for reasons related to COVID-19 (also eligible for CEWS and CEBA)

  • Sole proprietor – eligible of stops working for reasons related to COVID-19 (not eligible for CEWS or CEBA)

  • Own a corporation and paid by dividends, not salary – eligible of stops working for reasons related to COVID-19 (not eligible for CEWS or CEBA)

EMPLOYMENT INSURANCE (EI)

  • Can continue to work/earn income without disqualifying for EI

  • Can keep up to $0.50 of EI for each dollar earned – maximum is 90% of weekly insurable earnings used to calculate EI benefit

  • If more, EI deducted dollar-for-dollar against other income source

  • Means employers can gradually recall employees (including part-time) without disqualifying EI benefits for those recalled

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CKL EMPLOYERS - TIPS FOR RECALLING EMPLOYEES FROM LAY OFFS - WHAT YOU NEED TO KNOW

Employers in the City of Kawartha Lakes, tips to you for recalling employees from lay offs during the pandemic:  

  • Must recall before end of 13-week statutory period (within rolling 20 week period); maximum is 35 weeks during any 52-week period if certain conditions apply – otherwise deemed termination – More information about lay off rules and requirements is here: http://wardlegal.ca/31586368607034
  • Terms of recall must comply with the requirements of the Employment Standards Act, at a minimum
  • Check employment agreement, workplace policy or collective bargaining agreement, if any – must provide “greater right or benefit” compared to Employment Standards Act
  • No formal notice requirement/procedure, unless in an employment agreement, workplace policy or collective bargaining agreement, if any
  • If not recalled by statutory deadline, statutory entitlements triggered for most employees (but check for exemptions to statutory entitlement – construction workers, etc.)
  • May also trigger common law pay in lieu of notice (i.e., severance)
  • Employees must return, if recalled, within a reasonable period of time, or forfeit statutory entitlements (termination and severance pay, etc.) [Employment Standards Act Policy and Interpretation Manual, ss. 2(1), para. 7]
  • Employer must prove failure to return after recall – must be clear, written notice of recall and employee could read and understand the recall notice
  • Avoid verbal recalls – do it in writing
  • Avoid recalling for a short period of time to avoid paying statutory entitlements [Highland Cove Marina v. Van Velden and Babcock, Dec. 22, 1983, ESC 1531, Sheppard)
  • Must return to pre-lay off position – must be confirmed in the written notice of recall
  • Return to work notice should identify those employees being recalled, dates of recall and intention to provide a work schedule to those recalled
  • If staggering recalls, should recall in reverse order of lay offs (i.e., those laid off first will be recalled first), if possible
  • Return to work notice should confirm the recall is on the same terms of employ as pre-lay off
  • If any change to pay, work hours, etc. to be applied, must specify that in the written recall notice (and confirm intention to return to pre-lay off terms as soon as possible)
  • Return to work notice should explain further lay offs may be required, depending on developments and, if so, terms of initial lay off will apply
  • Return to work notice should remind recalled employees to notify the federal government (i.e., end the CERB, EI, etc.) to avoid double-dipping
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RESTARTING THE CKL ECONOMY - UPDATE - WHEN? HOW? WHAT YOU NEED TO KNOW

The federal and Ontario governments have agreed to common principles to gradually restart our economy:  

  1. taking a science and evidence-based approach to decision-making;
  2. coordination and collaboration between all jurisdictions;
  3. continued accountability and transparency of all governments; and
  4. flexibility and proportionality as information changes over time.

They jointly agreed on these mandatory criteria and measures to restart: 

  • COVID-19 transmission is controlled, so new cases are contained at a level that our health care system can manage;
  • sufficient public health capacity is in place to test, trace, isolate, and control the spread of the virus;
  • expanded health care capacity exists to support all needs, including COVID-19 and non-COVID-19 patients;
  • supports are in place for vulnerable groups, communities, and key populations. This includes the protection of seniors, residents of group living facilities, workers in close quarters, homeless people,  Indigenous peoples and those living in remote locations, health care workers and other essential workers, and inmates;
  • support and monitoring of workplace protocols are in place to keep Canadians safe at their jobs, and prevent the introduction and spread of COVID-19;
  • restrictions on non-essential travel are eased and managed in a coordinated manner; and
  • communities are supported in managing local disease activity, including in child care, schools, and public transportation, and industry and economic sectors are engaged to support the health of Canadians, reduce viral activity, and protect the economy as it restarts.
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CKL BUSINESSES AND LANDLORDS - THE NEW COMMERCIAL RENT DEAL - WHAT YOU NEED TO KNOW AS OF TODAY

City of Kawartha Lakes commercial tenants and landlords - what you need to know about the new, evolving commercial rent program available through the federal government: 

  • Reduces commercial rent by 75% if affected by COVID-19

  • Must pay less than$50,000 monthly rent to qualify

  • Must have stopped operating or suffered a 70% reduction in gross revenue

  • Available for April, May and June

  • Landlord must apply

  • Landlord pays 25% of monthly rent; tenant pays 25% to landlord; government gives loan to landlord for remaining 50%

  • Government loan is forgiven if landlord complies with program requirements

  • Must be a written “rent forgiveness agreement”, including a term for no eviction

  • Available to non-profits, etc.

  • More information here: http://wardlegal.ca/31586368607096

  • If landlord is unreasonable, inflexible (refused to apply to program), available options to defer or avoid commercial rent arrears are here: http://wardlegal.ca/31586368607098

 

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CKL EMPLOYERS - YOUR UPDATED CHEAT SHEET FOR THE NEW 75% WAGE SUBSIDY - WHAT YOU NEED TO KNOW TODAY

Employers in the City of Kawartha Lakes, your updated Cheat Sheet of nee-to-know tips for the emergency wage subsidy and taking advantage of this benefit: 

  • 75% of employees’ wages for up to 12 weeks
  • Retroactive to Mar. 15
  • Intend to promote recall and rehiring of employees laid off or terminated due to COVID-19; resume normal operations, if possible
  • Three claim periods – Mar. 15 to June 6, 2020
  • Available to most individuals, businesses and non-profits qualify to apply – must be an “eligible employer”
  • Maximum of $847 per employee per week – likely to be greater than EI (55% up to a maximum of $573 weekly and the CERB, $500 weekly, taxable)
  • Challenge for employees earning greater than $58,000 annually
  • No overall limit
  • Retroactive to Mar. 15, 2020
  • Applies to even newly hired employees
  • If you qualify for Mar. 2020, automatically qualify for Apr. 2020 (i.e., auto re-qualification applies to every claim period)  
  • Employers not required to top up employees’ pay to pre-subsidy amounts
  • Must demonstrate reduction in monthly revenues of: (a) at least 15% in March; and (b) 30% in April and/or May, 2020, as compared to either: (i) that same month in 2019; or (ii) the average of your Jan. and Feb. 2020 total, gross revenue
  • Can use either an as-earned (i.e., invoicing) or as-paid accrual, but must use the same calculation in every claim period – cannot change
  • Affiliated employers can apply individually or on a consolidated basis
  • Apply on the CRA’s Web site – use the My Business portal
  • Taxable benefit to employers (as government assistance)
  • Use the calculator on the CRA’s Web site to estimate subsidy before submitting the application online
  • Subsidy will be reduced by the eligible claim for the 10% subsidy in each claim period (i.e., taken at source by employers; not a direct reimbursement)
  • Full refund for EI and CPP contributions for laid off/furloughed employees if on “leave with pay” during the claim periods (i.e., if “leave with pay” permitted by either the Employment Standards Act or the Canada Labour Code)
  • Honour system applies – penalty is repayment in full, plus 25% penalty on subsidy received
  • Should consult with accountant on information relied on for application
  • Note: not available for employee if, during the claim period, there were 14 consecutive or more days without pay [Example: if employee laid off with no pay on Apr. 11, but recalled on May 9, but he/she does not receive pay for at least 14 consecutive days during the lay off period (between Apr. 11 to May 9, no subsidy available for that employee during the claim period – employer is responsible for ensuring an each employee has not been paid “eligible remuneration” for 14 or more consecutive days during the claim period
  • Laid off employees can be retroactively eligible, if rehired and retro pay and status meet the “eligibility criteria”  
  • Employees cannot receive both the CERB and the subsidized income
  • Employees responsible for determining CERB entitlement, not employers
  • Employers can claim the subsidy for employees who received the CERB, if otherwise eligible – employee required to pay back the CERB if no longer qualify during the 4-week claim period in question
  • Does not replace the 10% wage subsidy (does not require a revenue reduction; reduced withholdings at source to receive), but cannot receive both
  • Employers can claim for employees on “leave with pay”
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WHAT MUST CKL EMPLOYERS LEGALLY DO TO PROTECT EMPLOYEES DURING COVID-19? WHAT YOU NEED TO KNOW.

Every employer in the City of Kawartha Lakes has a duty to take all reasonable steps to ensure the health and safety of employees, pursuant to Ontario’s Occupational Health and Safety Act.

According to Inspectors from the Ministry of Labour currently, generally in terms of COVID-19, this means:

  • maintaining physical distancing all times in the workplace;
  • ensuring adequate sanitation and hand-washing facilities;
  • performing adequate cleaning and disinfecting throughout the workplace;  
  • practicing all other federally, provincially and municipally ordered and recommended health advisory containment steps and precautions;
  • respecting the privacy of employees as much as possible in the circumstances, particularly if seeking information or conducting any screening; and  
  • using reasonable and best efforts to refuse entry into your workplace of anyone who:
  • is identified as a person diagnosed with COVID-19;
  • has the signs and symptoms of COVID-19, has been tested for COVID-19 and is awaiting the results of their test;
  • for whom your employer has reasonable grounds to believe that person has symptoms of COVID-19; and/or
  • has close contact with another person identified in the above points,

These relate to COVID-19, but there may be other health and safety obligations for employers, depending on the nature of the workplace and the operations. 

For more information from us about monitoring and screening COVID-19 in the workplace, go here: http://wardlegal.ca/31586368607052

For additional information, contact the Ontario Ministry of Labour, Training and Skills Development here: https://www.ontario.ca/page/ministry-labour-training-skills-development

 

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MENTAL HEALTH AND ADDICTION SERVICES IN CKL - NEW EMERGENCY ORDER - MORE FLEXIBILITY TO PROVIDE ASSISTANCE TO THOSE IN NEED

New Ontario emergency order affecting employers who provide mental health and addiction services (“Mental Health Agencies”), per Ontario’s Emergency Management and Civil Protection Act: 
 
Mental Health Agencies now have broad discretion and flexibility to take “any reasonably necessary measure to respond to, prevent and alleviate the outbreak” of COVID-19 and “to respond to consequences arising from” COVID-19, including: 
• redeploy staff within different locations, despite collective bargaining agreements; 
• change the assignment of work, which can include assigning non-bargaining unit employees or contractors to perform bargaining unit work; 
• change scheduling or shift assignments; 
• defer or cancel vacations, absences or other leaves (regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise); 
• employ extra staff (whether full time, part time, temporary, contractors, volunteers) to perform work, including bargaining unit work; 
• provide training or education as needed to staff and volunteers to “achieve the purposes of a redeployment plan”; 
• conduct “skills and experience inventories” to identify alternative roles for staff “in priority areas”; and 
• collect information from staff about their availability to provide services including their health conditions or exposure to COVID-19. 
These steps are permitted even if contrary to any collective bargaining agreements currently in effect. 
If there were a grievance by a union, it is deemed to be suspended during Ontario’s State of Emergency.   
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CKL - OUR NEW "REOPENING" PLAN - WHAT YOU NEED TO KNOW

April 27, 2020 – the Ontario Government announced it’s “Framework for Reopening our Province”.

  • no hard dates
  • no specific businesses or services identified
  • each stage is estimated to be two-to-four weeks, subject to virus containment

STAGE 1:

  • “select workplaces” that can immediately modify their operations to meet physical-distancing requirements, such as using curb-side pickup or delivery, will be allowed to open 
  • some outdoor spaces such as parks will be opened, and a greater number of people will be allowed to attend events such as funerals
  • hospitals will start rescheduling some surgeries and other postponed medical services 

STAGE 2:

- more workplaces allowed to open, including some service industries as well as retail and office workplaces 

- more outdoor spaces will open and larger public gatherings will be allowed

STAGE 3

- all workplaces will be reopened and restrictions on public gatherings will be relaxed further. However, large gatherings such as concerts and sporting events will “continue to be restricted for the foreseeable future" 

 

 

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AS THE ECONOMY OPENS UP, IF I AM RECALLED TO MY JOB, CAN I REFUSE? WILL I BE FIRED OR SUSPENDED? WHAT IS MY RIGHT TO REFUSE TO GO TO WORK BECAUSE OF THE VIRUS?

If I am an essential worker (or permitted to work at my job), can I refuse to go to work because I am concerned about getting the virus? If so, can I collect the CERB?

If your employer is:

  • maintaining physical distancing in the workplace;  
  • practicing all federally, provincially and municipally ordered and recommended health advisory containment steps, including providing adequate hand-washing facilities; and
  • ensuring not to allow entry into your workplace of anyone who:
  • is identified as a person diagnosed with COVID-19
  • has the signs and symptoms of COVID-19, has been tested for COVID-19 and is awaiting the results of their test
  • for whom your employer has reasonable grounds to believe that person has symptoms of COVID-19,  or
  • has close contact with another person identified in the above points,

then if you refuse to attend your job, but you do not qualify for an authorized, job-protected, unpaid leave of absence under Ontario’s Employment Standards Act, you run the risk of being suspended, possibly without pay, and possibly terminated for non-attendance, leaving you with no severance pay, at law.

WILL I GET THE CERB?

If you have stopped working because of COVID-19, the Canada Emergency Response Benefit (CERB) may provide you with temporary income support. The CERB provides $500 a week for up to 16 weeks.

The Benefit is available to workers:

  • residing in Canada, who are at least 15 years old;
  • who have stopped working because of reasons related to COVID-19 or are eligible for Employment Insurance regular or sickness benefits or have exhausted their Employment Insurance regular benefits or Employment Insurance fishing benefits between December 29, 2019 and October 3, 2020;
  • who had employment and/or self-employment income of at least $5,000 in 2019 or in the 12 months prior to the date of their application; and,
  • who have not quit their job voluntarily.

When submitting your first claim, you cannot have earned more than $1,000 in employment and/or self-employment income for 14 or more consecutive days within the four-week benefit period of your claim.

When submitting subsequent claims, you cannot have earned more than $1,000 in employment and/or self-employment income for the entire four-week benefit period of your new claim.

WHAT LEAVES OF ABSENCE COULD I QUALIFY FOR TO AVOID RETURNING TO WORK?

If your employer is regulated by Ontario, as most are (except for banks, communications, transportation, etc.), you must qualify for one of Ontario’s legislatively approved leaves for a job-protected, but unpaid, leave of absence, such as the new Infectious Disease emergency leave. 

Employees have the right to take unpaid, job-protected infectious disease emergency leave if they are not performing the duties of their position because of specified reasons related to a designated infectious disease. This leave is available to all employees who are covered by Ontario’s Employment Standards Act.

Employers cannot threaten, fire or penalize an employee in any other way because the employee took or plans on taking an infectious disease emergency leave.

The only disease for which infectious disease emergency leave may be taken at this time is COVID-19. Although the Employment Standards Act was amended to include infectious disease emergency leave on March 19, 2020, the leave entitlements for COVID-19 are retroactive to January 25, 2020. 

HOW DO YOU QUALIFY FOR THE INFECTIOUS DISEASE LEAVE?

Employees can take infectious disease emergency leave if they will not be performing the duties of their position because of any of the following reasons:

  1. the employee is under individual medical investigation, supervision or treatment related to a designated infectious disease.The medical investigation, supervision or treatment can be in Ontario or in another province, territory or country;
  2. the employee is following a COVID-19 related order issued under section 22 or 35 of Ontario’s Health Promotion and Protection Act;
  3. the employee is in quarantine, isolation (voluntary or involuntary), or is subject to a control measure, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued by:
    1. a public health official. This means a public health official of the Government of Canada or any of the following people within the meaning of the Ontario Health Protection and Promotion Act:
      • the Chief Medical Officer of Health or Associate Chief Medical Officer of Health;
      • a medical officer of health or an associate medical officer of health; and/or
      • an employee of a board of health;
    2. someone who is qualified to practice as a physician or a nurse either in Ontario or in the jurisdiction where the employee is located (for example, another province, territory or another country) and who has provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease (such as an employee who has an immune deficiency was told by his physician to self-isolate and not go to work during the infectious disease outbreak);  
    3. Telehealth Ontario;
    4. the Government of Ontario or Canada;
    5. a municipal council in Ontario; and/or
    6. a board of health.

The information or direction may be issued:

  • to the public (in whole or in part);
  • to one or more people; and
  • through any means, including print, electronic or broadcast (for example, television or radio)
  1. the employee is under a direction given by his or her employer in response to the employer’s concern that the employee might expose other individuals in the workplace to a designated infectious disease.

For example, this would include the employer directing the employee to stay at home for a period of time if the employee has recently travelled internationally and the employer is concerned the employee may expose others in the workplace to a designated infectious disease;

  1. the employee is providing care or support to any of these individuals because of a matter related to a designated infectious disease:
    • the employee’s spouse (of the same or opposite sex, whether or not married)
    • a parent, step-parent or foster parent of the employee or the employee’s spouse
    • a child, step-child or foster child of the employee or the employee’s spouse
    • a child who is under legal guardianship of the employee or the employee’s spouse 
    • a brother, step-brother, sister or step-sister of the employee
    • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
    • a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
    • a son-in-law or daughter-in-law of the employee or the employee’s spouse
    • an uncle or aunt of the employee or the employee’s spouse
    • a nephew or niece of the employee or the employee’s spouse
    • the spouse of the employee’s grandchild, uncle, aunt, nephew or niece
    • a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met (currently there are no prescribed conditions)
    • any individual prescribed as a family member for the purposes of this section (currently, there are no additional prescribed family members)

This includes an employee taking leave to care for their child whose school or day care was closed because of a designated infectious disease (in this case, COVID-19).

Examples include:

  • an employee who is providing care to an aunt who is sick with COVID-19
  • a babysitter who is in quarantine or isolation because of a designated infectious disease, or is sick because of it
  • a summer camp that the employee’s child was scheduled to attend closed down to help prevent the spread of a designated infectious disease
  • an employee’s 10-year-old brother, who was visiting the employee from another city without his parents, was unable to return home because of travel restrictions imposed to prevent the spread of a designated infectious disease

The employee can be providing the care or support in Ontario or in another province, territory or country.

  1. The employee is directly affected by travel restrictions related to a designated infectious disease and, under the circumstances, cannot be reasonably expected to travel back to Ontario.

For example, this would include an employee who is on a cruise ship that is not permitted to dock in any country because of the concern that passengers are infected by a designated infectious disease.

There may be some situations where an employee is affected by travel restrictions (for example where there are no international commercial airline flights available) but the employee has other options available to travel back to Ontario. This condition will be met if it would not be reasonable to expect the employee to use alternative options.

What is reasonable will depend on the circumstances. For example, an employee was vacationing in Mexico City when Canada banned all flights from Mexico for two weeks. The employee could rent a car or take a series of buses and trains to return to Ontario but that would not be a reasonable expectation in the circumstances.

This provision applies only where the employee is directly affected by the travel restrictions. In other words, it applies only where the employees travel back to Ontario is affected.

This provision applies only when the employee is caught by travel restrictions while outside of Ontario.

WHAT ARE MY RIGHTS DURING MY LEAVE?  

Employees who take infectious disease emergency leave are generally entitled to the same rights as employees who take pregnancy or parental leave. For example, employers cannot threaten, fire or penalize in any way an employee who takes or plans on taking an infectious disease emergency leave.

WHAT OTHER LEAVES OF ABSENCE AVAILABLE TO ME?

There are different types of leaves under the Employment Standards Act, including:

  • sick leave
  • family responsibility leave
  • family caregiver leave
  • family medical leave
  • critical illness leave
  • bereavement leave
  • declared emergency leave

An employee may be entitled to more than one leave for the same event. Each leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s).

The purposes of the leaves, their length and eligibility criteria are different.

 

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CKL EMPLOYEES - A NEW TAX BREAK FOR YOU IF YOU BUY PERSONAL COMPUTER EQUIPMENT - NOT A TAXABLE BENEFIT TO YOU ANYMORE

April 22, 2020 - the Canada Revenue Agency (the “CRA”) announced it would allow special, favorable tax treatment to employees working from home during the COVID-19 pandemic. 

The CRA will accept that the reimbursement of an employee, for amounts spent on personal computer equipment to enable the employee to work from home, will not be a taxable benefit to the employee. This relief is to apply for amounts up to $500 and only in respect of amounts for which the employee provides receipts.

This departs from the standard-course taxation of home office expenses, according to which if an employee receives a reimbursement for home office equipment, it is characterized as a personal expense, primarily for the employee’s benefit, and therefore a taxable benefit.

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NEW PANDEMIC TOP-UP TO FRONT LINE WORKERS - ADDITIONAL $4 HOURLY + $250 TO WORK LONGER HOURS

To provide additional support for front line workers fighting COVID-19, the Ontario government is now providing a temporary pandemic pay of $4/hour worked on top of their regular wages. In addition, the government will be providing monthly lump sum payments of $250 for four months to eligible frontline workers who work over 100 hours per month. The pandemic pay will be effective for 16 weeks, from April 24, 2020 until August 13, 2020, and is expected to support over 350,000 frontline workers.

Eligible workplaces and workers for pandemic pay

The pandemic pay is designed to support employees on the frontlines of COVID-19 and does not apply to management. Eligible workplaces and workers include:

Health care and long-term care

Eligible workplaces

  • Acute hospitals
  • Long-term care homes (including private, municipal and not-for-profit homes)
  • Licensed retirement homes
  • Home and community care

Eligible workers

  • Personal support workers
  • Registered nurses
  • Registered practical nurses
  • Nurse practitioners
  • Attendant care workers
  • Auxiliary staff, including:
    •  Porters, cook, custodian, housekeeping, laundry facilities and other key workers.
  • Developmental services workers
  • Mental health and addictions workers

Social services

Eligible workplaces

  • Homes supporting people with developmental disabilities
  • Intervenor residential sites
  • Indigenous healing and wellness facilities/shelters
  • Shelters for survivors of gender-based violence and human trafficking
  • Youth justice residential facilities
  • Licensed children's residential sites
  • Directly operated residential facility ― Child and Parent Resource Institute
  • Emergency shelters
  • Supportive housing facilities
  • Respite/drop-in centres
  • Temporary shelter facilities, such as re-purposed community centres or arenas
  • Hotels/motels used for self-isolation and/or shelter overflow

Eligible workers

  • Direct support workers (e.g. developmental service workers, staff in licensed children's residential sites, in-take/outreach workers)
  • Clinical staff
  • Housekeeping staff
  • Security staff
  • Administration personnel
  • Maintenance staff
  • Food service workers
  • Nursing staff

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

  • Correctional officers
  • Youth services officers
  • Nurses
  • Healthcare staff
  • Social workers
  • Food service
  • Maintenance staff
  • Programming personnel
  • Administration personnel
  • Institutional liaison officers
  • TRILCOR personnel
  • Native inmate liaison officers
  • Chaplains
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CKL BUSINESSES - WHAT DO YOU DO IF YOUR LANDLORD IS UNREASONABLE AND REFUSES TO APPLY FOR THE NEW COMMERCIAL RENT LOAN? YOUR TWELVE-STEP ANSWER......

What if your commercial landlord is inflexible and uncooperative and refuses to participate in the new Canada Emergency Commercial Rent Assistance (CECRA) program, reducing your monthly commercial rent in April, May and June, 2020 to a maximum of 25%?

CKL businesses leasing commercial property from an inflexible landlord, and which cannot afford to pay ongoing commercial rent, should consider taking the following steps:

[1]    in writing, promptly request your landlord to apply for the new Canada Emergency Commercial Rent Assistance (CECRA) and to relieve you from 75% your monthly rent for April, May and June, 2020;

[2]    apply for the expanded Canada Emergency Response Benefit, including if you are self-employed, or you paid yourself dividends from your incorporated small business;

[3]    if your landlord refuses to participate in the CECRA, in writing, request your landlord to act co-operatively, reasonably and flexibly, particularly if you are a non-essential business, as specifically directed by both the federal and provincial governments;

[4]    in writing, request your landlord to agree to a ninety-day, interest-free rental deferral, with the possibility of further extension depending on the ongoing status of the virus;

[5]    if your landlord remains inflexible and it strictly intends to enforce the lease, consider having your qualified lawyer send a letter affirming your position and threatening legal action against the landlord, including the payment of costs;

[6]    review your lease carefully for:

(a) a force majeure clause;

(b) health emergency clauses;

(c) liability protection clauses,

and any other clauses that may allow you to argue frustration of the commercial lease and, therefore, absolve you of liability for your obligations, including rental payment;

[7]    speak to your insurance broker about the availability of business interruption and any other available insurance that may assist you, including to pay rent, as explained above – consider providing your contact information for the ongoing Ontario class action lawsuit against insurers who have denied this coverage during COVID-19;

[8]   if necessary, seek assistance from your lawyer to apply for relief from forfeiture, subject to any further governmental steps that may be taken in the near future to assist you, or the landlord;

[9]   if your landlord sues you for any damages, speak to your qualified lawyer about defending the claim based on frustration of contract;

[10]   contact your M.P.P. and request that the Ontario government immediately and legislatively, or by other suitable measure, ban the forfeiture of commercial leases from March 15, 2020 until June 30, 2020 (or longer, if necessary, due to the pandemic);

[11] ensure all of your dealings with your landlord are in writing or, alternatively, make detailed notes about your verbal dealings with your landlord (i.e., potential evidence); and

[12] continue to monitor the expanding financial economic responses plans by both the federal and provincial governments, which will continue to change and expand during the pandemic.

For more information from us about the step-by-step guide to assist you, go here:

http://wardlegal.ca/31586368607060

 
 
 
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COVID-19: 8 EASY/SIMPLE STEPS TO HAVE BETTER ZOOM SECURITY.

Zoom remains popular for video conferencing during the pandemic.

Zoom has made security upgrades after the initial controversy.

Here are eight additional tips to achieve better Zoom security and management for your vide conferencing:

[1] Use a password:

- only participants with the meeting ID and password may join in

- remove the password from email invitations; deliver it separately to each participant

[2] Disable the “joint before host” feature/option:

- as host, only you should control who participates using a verified Zoom account and log in

[3] Disable file sharing:

- use the Chat function to do so

- use alternative ways to deliver or exchange e-records

[4] “Lock the meeting”:

- when all participants have jointed, “lock the meeting” to prevent uninvited guests from crashing

[5] Adjust your settings to only those necessary for the specific meeting:

- disable chat, screen sharing, file sharing, annotation and whiteboard features, unless they are necessary for the specific meeting

- if not disabled, monitor them closely as the host

[6] Use and promote netiquette at the outset and throughout the meeting;

- consider using a checklist to manage the meeting and record the events during the meeting

[7] Recording the meeting:

- only with the consent of each participant, which needs to be recorded

- speak with Zoom to verify where the meeting will be stored in the “cloud” to ensure privacy and security is maintained

[8] Watch for and download/install Zoom updates and upgrades – refresh your settings before each meeting.

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CKL BUSINESSES - WORKING AT HOME HAS SURGED - YOU'RE ALSO NOW ONLINE TO SURVIVE - SEVEN STEPS FOR PREPARING FOR AN IT FAILURE AND TO REDUCE YOUR LIABILITY RISKS

Due to the pandemic, the surge in work-from-home arrangements has caused strain and pressure on information technology (“IT”) providers.

Internet broadband providers, cloud-based businesses and virtual private network operators (“VPN”s) may be unable to keep pace with the new IT requirements for their clients’ businesses (collectively, “IT Providers”).

The result may be business interruption, additional time required to manage IT-related issues or other unanticipated resource allocation. 

To protect your business and prepare for this change in the IT world, you should:

[1]      Review your contract with your IT Providers:

  • is there a “force majeure” clause, or any clause addressing the interruption of IT services due to a health emergency or other reason?

For more information from us about non-performance clauses in contracts during COVID-19, go here: http://wardlegal.ca/the-virus---does-it-cancel-contracts-rental-agreements-separation-and-parenting-agreements-maybe---read-on

  • is there any clause about a material change in circumstances (i.e., adverse change) that may be triggered due to COVID-19?
  • is there any clause about whether temporarily not provide IT services will constitute a breach of your contract?
  • is there any clause in the contract that may limit or exclude the liability of the IT provider for non-performance?
  • is there any clause that imposes a time limit, or procedure by which, your claim must be made against the IT Provider, if any?
  • is there any clause requiring you to “mitigate” your damages and, in any event, should you discuss any available alternatives with the defaulting IT Provider, or arrange for another IT Provider to provide your services?

[2]      Check your commercial insurance policies:

  • do you have business interruption coverage?

For more information from us about this coverage, go here: http://wardlegal.ca/31582887996638

  • do you have emergency or public health coverage?
  • do you have any coverage that may be triggered due your IT Provider’s failure to provide services to you?
  • discuss with your broker whether such is available, if you do not have it, and consider amending your policy for that coverage
  • make sure you know what, if any, notice requirements you have vis-à-vis your insurance company if your IT Provider fails to perform, including if you intend to make a claim as a result

[3] Get your contingency plan ready:

If you may experience non-performance by your IT Provider, consider:

  • doing a full assessment of your business and its operations in terms of reliance on IT services;
  • evaluating the potential impact of non-performance by your IT Provider on your ability to continue your business; and
  • identify other options and have your contingency plan ready.

[4]      Get your workplace policy implemented for working-from-home (i.e., remote) arrangements:

  • implement your policy and have all employees acknowledge and agree, in writing;
  • consider incorporating:
    • productivity expectations;
    • action plan in the event of the failure of an IT Provider; and  
    • reporting system for any IT disruptions.

[5]      Get your date breach/privacy protocol workplace policy in place, as required by law

[6]      Monitor IT services carefully to detect any failure or breach and carefully record any incident

[7]      Carefully monitor e-fraud during the pandemic, which is rampant, including:

  • any requests for payment, especially any request to change payment or account details;
  • ensuring your employees speak personally with the third party to verify the payment arrangements;
  • check and double-check emails addresses and other contact information for third parties where funds are involved, including based on historical information;
  • always ask for confirmation via a new email (not a chain); and  
  • act quickly and decisively if fraud is detected.

 

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CKL BUSINESSES AND LANDLORDS - THE NEW DEAL FOR RENT DURING THE PANDEMIC - SUBSTANTIAL REDUCTION TO ONLY 25% - WHAT YOU NEED TO KNOW

The federal Government announced today it will in partnership with the Ontario government implement the Canada Emergency Commercial Rent Assistance (“CECRA”) for small businesses in the City of Kawartha Lakes: 

  • commercial rent is reduced by 75% for small businesses affected by COVID-19 [i.e., businesses paying less than $50,000 per month in rent and who have temporarily ceased operations or have experienced at least a 70% revenue reduction];
  • eligible landlord applies for forgivable loan(s) to cover 50% of three monthly rent payments - April, May and June;  
  • landlord loans will be forgiven if the mortgaged property owner agrees to reduce the rent by at least 75% for these three months under a “rent forgiveness agreement”, which will include a term not to evict the tenant while the agreement is in place;  
  • the small business pays the remainder, up to 25% of the rent; and
  • also available to local non-profit and charitable organizations.
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LEGAL LIABILITY FOR ENGAGING IN ASIAN-BASED DISCRIMINATION - THERE IS A LEGAL CONSEQUENCE TO DOING SO.

Both regrettably and predictably, racism and discrimination appear to be surging with the spread of the COVID-19 virus. 

Credible sources now report that xenophobia, racially-motivated acts of discrimination and harassment towards ethnic groups is increasing. 

Through public messaging by some, including the President of the United States, COVID-19 has been referred to as the "Chinese" and the "Wuhan" virus, on the basis that it is believed to have originated in Wuhan, China. 

Doing so only serves to reinforce negative connotations, perception and stigma, inescapably encouraging more pronounced and insidious racist ideologies and prejudices directed at a specific ethnic group.

As a result, members of our Asian ethnicities have been targeted. Some report experiencing more racist acts during the pandemic, presumably attributable to existing racist views, assumptions and unconscious biases of racialized people and groups, as well as stigma, fear, or being misinformed.

There is some legal protection against these unjustified acts, promulgated by Canada's Criminal Code (hate crimes, etc.). 

In addition, employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Differential treatment related to this virus is not permissible and prohibited by Ontario's law.

COVID-19 does not discriminate against specific ethnic groups, why would we? 

We should all raise our voices against stigma and discrimination

Nervous fear is natural and expected in this crisis, but it cannot translate into short-signed, divisive hate-mongering. This is not a "Chinese" virus, as a certain leader may espouse. Rather, this is global pandemic, of which we are all, by necessity, a part.

Civility must prevail. Solidarity and altruism, not bigotry, will triumph.

We are all in this together.

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EXTENSIVE NEW FINANCIAL AID TO STUDENTS TODAY - YOU'LL NEED A CALCULATOR TO DECIDE WHICH WAY TO GO - WHAT YOU NEED TO KNOW.

April 22 – The federal Government announced new financial aid to students – they can now claim a new Canada Emergency Student Benefit (“CESB”).

Under the CESB, eligible post-secondary students could receive $1,250 monthly from May to August. If that student is also taking care of someone else or has a disability, that amount increases to $1,750 monthly.

College and university students currently in school, planning to start in September, or who graduated in December 2019 are eligible.

In addition, working students earning less than $1,000 per month can also apply.

The new benefit will require legislation, but the federal Government promised to promptly roll this out. 

In addition to the CESB, the federal Government also announced more financial assistance to young people:

  •  creating an additional 76,000 jobs for young people in certain sectors, or that are on the frontlines of this pandemic;
  •  investing more than $291 million to extend scholarships, fellowships, and grants for three or four months;
  •  launching a new Canada Student Service Grant of between $1,000 and $5,000 for students volunteering in the COVID-19 fight; and
  • doubling the student grants that the government gives out for the 2020-21 school year.

This new benefit is intended to address the ‘gap’ for students who did not qualify for the CERB, due to the condition that they must have reported $5,000 in income in the past twelve months.

Earlier, the federal government announced temporary changes to the Canada Summer Jobs program to help students find work in a largely locked-down country once their summer begins.

Now, employers who hire summer students can apply for a subsidy of up to 100 per cent of the Ontario minimum wage. This is for the age range of 15 to 30.

For many students and employers in the City of Kawartha Lakes, this raises new questions. For example, financially is a student better off volunteering to receive a service grant, or having a job that's fully or partly-funded under the revised Canada Summer Jobs program, or even the 75%  wage subsidy if an employer qualifies and is applying for that next week? Get out a calculator – there is math that needs to be done.  

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COVID-19- WORKING AT HOME - BEST PRACTICE AND TIPS TO BOTH EMPLOYERS AND EMPLOYEES

Virtually or remotely working (from home) can be very challenging to both employees and employers.

During this pandemic, typical work procedures and arrangements must be modified and be adaptive to the new reality.

Here is some guidance and tips to both employees working at home, and employers who now must lead them remotely.

IF YOU ARE WORKING REMOTELY OR AT HOME:

  • maintain structure;
  • plan your day, as if you are going to work (follow your morning routine, try to do the same things you would ordinarily do when starting your day, subject to your other responsibilities at home, like trying to parent children at home due to the school closures;  
  • make adjustments, if needed, to the hours you ordinarily would work in the office, because of child care and other responsibilities you may now have, because you are sharing equipment with a partner who is also working from home, or for any other reason;
  • keep your employer updated on your success with your arrangements for working remotely - they will appreciate you doing so; 
  • set up a designated space for working;
  • if you are struggling with the transition, focus on the benefits (i.e., how much commute time are you saving? Consider gas, transit, coffee, or parking savings, too);
  • use technology to stay present and connected - structure your daily schedule to accommodate communication with co-workers – find new ways to maintain connection, to help prevent feelings of isolation;
  • subject to the emergency orders and healthcare officials’ recommendations, take the time to get fresh air and exercise; even in times of self-isolation, a physically distanced walk can help maintain sanity and good health;
  • if you feel like you need more guidance when working from home, initiate regular check-ins with your manager to provide more structure;  
  • good, regular communication with your employer and co-workers is essential;
  • try not express your frustration or dismay by email or texts – talk through issues by ‘phone or virtually; and
  • give yourself a break, especially if you have children at home for whom you care – don’t be too hard on yourself; you’re only human!

IF YOU ARE MANAGING EMPLOYEES WORKING REMOTELY OR AT HOME:

Leading remotely can be challenging – some guidance to be successful:  

  • check in regularly with your employees – make them feel comfortable and connected;
  • schedule regular team meetings or virtual sessions, as well as one-on-ones, to maintain the flow of work and communication;
  • e-mail and instant messages can lack tone and create misunderstandings - lead by example by not jumping to assumptions and address potential conflict immediately;
  • even if you have known your employees for years, work to maintain strong relationships from a distance;
  • express appreciation for your team, acknowledge birthdays and other special events or occurrences;
  • encourage your employees maintain work-life balance and wellness – help them set boundaries to ensure the home is not an around-the-clock workplace;
  • set clear start and finish times for yourself, as well as breaks that would normally occur in the office;
  • let your employees know when you will be “out”, or taking a break;
  • take advantage of e-mail, instant messaging and virtual technology to facilitate different ways to communicate;
  • turn video on for one-on-ones and team meetings - help your team feel more present and engaged;
  • shift to a results-focused mindset, rather than a time-focused mindset by setting clear performance goals; and
  • facilitate more flexibility with schedules, and less anxiety for parents that may be having to split their time between managing children and work.

ONTARIO’S HUMAN RIGHTS (FOR EMPLOYEES):

Remember that employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Assuming that someone has the virus because they happen to have exhibited one of the symptoms of the virus and because of an assumption about where they are from based upon how they look would most likely be considered discrimination.

If an employer were aware of this differential treatment and chose to do nothing about it, they could be exposed to liability since employers are in most cases vicariously liable for the actions of their employees.

Differential treatment related to this virus is not permissible.

Employers should likely go further and communicate that any employee who behaves in such a manner will be subject to corrective action and, possibly, discipline.

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IF A PERSON SUCCUMBS TO COVID-19 (WITH NO VALID POWER OF ATTORNEY), WHO MAKES THE HEALTH CARE DECISIONS? WHAT YOU NEED TO KNOW.

What happens when a person in Ontario becomes disabled or incapacitated, to the extent that the person cannot make decisions about his or her own health care or treatment? 

In short, someone else is authorized or appointed to make those decisions for the incapacitated person, subject to certain rules and duties imposed by law. 

However, we have a hierarchy of decision-making power in Ontario.

Here is an excellent article by Sydney Osmar of Hull & Hull explaining this hierarchy and how personal health care decisions are regulated for incapable people:  

"Section 20 of the Health Care Consent Act (“HCCA”) provides for a legislative hierarchy of substitute decision makers for persons who have been found incapable with respect to treatment. The hierarchy is as follows:

  1. The incapable person’s guardian of the person;
  2. The incapable person’s attorney for personal care;
  3. The incapable person’s representative appointed by the Consent and Capacity Board;
  4. The incapable person’s spouse or partner;
  5. A child or parent of the incapable person, or an agency that replaces the parent’s authority;
  6. A parent of the person who only has a right of access;
  7. A brother or sister of the incapable person; and
  8. Any other relative of the incapable person.

Those in the above list may only give or refuse consent on behalf of the incapable person if they are: at least 16 years of age, are not prohibited by court order, are available, and are willing to assume this responsibility. A person from the above hierarchy may only act as the substitute decision maker with regard to treatment, if there is not a person who also meets these requirements who ranks higher within the hierarchy.

Sections 20(5) and 20(6) of the HCCA sets out that if no one in the above list meets the requirements to make treatment decisions, or, if there are two equally ranking parties who both meet requirements but disagree on the treatment decision, the decision will devolve to the Public Guardian and Trustee (“PGT”).

As is clear by the placement within the above hierarchy, the act of granting a power of attorney for personal care (“POAPC”) holds great weight when it comes to determining substitute decision makers with regard to treatment decisions. However, the significance of the act of revoking a POAPC in relation to the legislative hierarchy is less clear.

For example, it is quite common for a person to grant a POAPC to their spouse or child, however, in revoking the POAPC, the spouse or child could still remain the legal substitute decision maker under the section 20 hierarchy, should there be no other higher ranking individual willing and able to make treatment decisions, and if the grantor fails to execute a new POAPC.

I have located two decisions of the Consent and Capacity Board (the “Board”), which suggests that in such circumstances, the Board will pull language from other sections of the HCCA to circumvent the hierarchy provided under section 20, where it is clear to do so would be in the incapable person’s best interests.

In A(I) Re, Mrs. I.A. had previously appointed her two children as her attorneys for care. However, this POAPC was later revoked, with Mrs. I.A. informing her lawyer she feared her two children would be unable to reach agreements on important health care decisions. Two distant relatives were instead appointed pursuant to a new POAPC. However, when Mrs. I.A. lost capacity, and a treatment decision needed to be made, the distant relatives felt they were not best suited to make such a decision.

Both children applied to act as Mrs. I.A.’s representative under s. 33 of the HCCA. In coming to its decision the Board accepted that Mrs. I.A.’s overt act of revoking the POAPC that appointed her children was a prior expressed relevant value and belief, however, this did not impact the fact that both children still qualified as decision makers under the section 20 hierarchy. The Board ultimately determined that it was not in Mrs. I.A.’s best interests to have her children act as decision makers, and concluded they could not agree, such that the decision devolved to the PGT.

In D(D) Re, this issue again arose, where the incapable person, D.D. (prior to becoming incapable) granted a POAPC to her husband, later revoking the POAPC when she believed that her husband would not act in her best interests. Because a new POAPC was never executed, the husband remained the legal decision maker under section 20. D.D.’s daughter, J.R., brought an application to the Board to act as her representative. In coming to its conclusion, the Board noted that it was clear that D.D. had not understood that by revoking the POAPC, her husband would remain the decision maker under the HCCA hierarchy, and that it was equally clear her intention had been to remove her husband as the legal decision maker. Therefore, to circumvent the hierarchy, the Board turned to a best interests analysis and ultimately appointed D.D.’s daughter as her decision maker." 

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MAKE YOUR ESTATE PLAN VIRTUALLY WITH YOUR LAWYER - OR WHAT YOU NEED TO KNOW TO MAKE A D-I-Y WILL AND POWERS OF ATTORNEY

By emergency order made on April 7, 2020, any person may now sign a will and powers of attorney virtually, or remotely, with your lawyer or licensed representative.

This new measure will make it much more convenient for you to make a new will and powers of attorney, particularly during isolation and the need to comply with the other pandemic containment requirements.

HOLOGRAPH WILLS:

However, a person may still make a “holograph” will in Ontario.

A holograph will:

  • must be “wholly” in your hand-writing, as the “testator” [Note: the hand-written portion of your document will likely be valid, even if the entire document is not in your hand-writing - to the extent any part of the document is not in your own hand-writing, that part will be excluded from your otherwise valid holograph document];
  • you must sign it;
  • your document must contain these key provisions:
  • it identifies your document as your “Will”;
  • it revokes any prior will you may have made;
  • it appoints your trustee/executor;
  • it contains simple dispositive provisions (i.e., how your estate is to be distributed and to whom);
  • it contains a ‘power to sell’ clause for your trustee/executor; and
  • it must be dated and signed by you.

It is critical that your document be entirely in your hand-writing and be signed by you at the end of the document.

If you holograph may need to be ‘probated’, which is common, proof of your hand-writing will be necessary. You could video yourself preparing and signing the document – that should be sufficient.

However, now that wills and powers of attorney may be signed virtually with your lawyer, you should also contact a qualified lawyer to arrange to prepare and sign a formal will and related estate planning documents as soon as practicable. 

YOUR FORMAL WILL:

In Ontario, before April 7, 2020, the formal requirements for your (non-holograph) valid will are set out by Ontario’s Succession Law Reform Act:

  1. the will must be in writing;
  2. the will is signed at the end by either you, the “testator”, or by some other person in your presence and acting under your direction;
  3. the will is signed or acknowledged by you in the presence of at least two attesting witnesses who are present at the same time; and
  4. at least two attesting witnesses sign/subscribe the will in your presence.

As of April 7, 2020, you can sign your will and powers of attorney virtually with your lawyer (i.e., your witnesses do not have to be physically present when you sign your will), subject to a few conditions. 

If you cannot read or write, you may be   unable to sign your name in the ordinary sense. However, a wide variety of “marks” have been judicially considered to have intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most people will be able to execute a will without difficulty.

The same issues may arise for a person who has physical difficulty with signing a will. 

While Ontario allows for some flexibility in how you “sign” your will, it is important to be cautious and taken certain steps to ensure that the requirement of your knowledge and approval of your will are not later questioned.

If there is any issue of capacity, or difficultly with the English language, for example, it is important to generate evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.

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MINISTRY OF LABOUR DOING 'BLITZ' INSPECTIONS OF ESSENTIAL BUSINESSES - WORKERS ABLE TO EXPRESS CONCERNS ABOUT HEALTH AND SAFETY DURING INSPECTION

Ontario’s Occupational Health and Safety Act (the “OHSA”) statutorily imposes duties on everyone in the workplace, including a positive duty on employers to take every precaution reasonable in the circumstances to protect employees’ health and safety.

Businesses deemed “essential”, or “non-essential” businesses continuing to operate remotely, must ensure their health and safety policies and practices meet the legal requirements and are consistent with public health orders and recommendations.

The Ontario Government has also ordered that a person responsible for an essential workplace continuing to operate must ensure the business operates in accordance with all applicable laws, including the OHSA, and compliant with all the advice, recommendations and instructions of public health officials.

To this end, Ontario’s Ministry of Labour has been “blitzing” essential businesses for health and safety inspections across Ontario, including to enable essential employees to express and voice their concerns, if any. 

Ontario’s health and safety inspectors are responsible for enforcing compliance with health and safety legislation in provincially-regulated workplaces in Ontario and have broad regulatory powers to address non-compliance, such as issuing orders to those in the workplace, who may also potentially face charges for non-compliance with legislation, with substantial fines and even incarceration as potential outcomes in certain circumstances in the event of a conviction for an occupational health and safety related offence.

According to the Ministry, inspectors conducted over 5,000 workplace inspections during March of 2020.

The Ministry has said inspectors will work with employers and employees to resolve issues, and shut down businesses where warranted.

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CKL RESIDENTS - RELATIONSHIP BREAKDOWN DURING COVID-19? WAIT - BEFORE YOU SETTLE ANYTHING - READ THIS AND BE VERY CAREFUL.

When two married spouses separate, among other issues they must resolve, they must “equalize” their “net family property”, respectively.

Basically, the spouse whose net worth increased more between the date of marriage and the date of separation must pay to the other spouse one-half of the difference in that increase over the other spouse, subject to a few rules and exceptions that often cause disputes in and of themselves.

If Sharon’s net worth increased by $10 during the marriage, but Mike’s, her married spouse’s, net worth only increased by $5, Sharon would legally be required to pay to Mike $2.50, thereby equalizing their net family properties.

Of course, it is more complicated than this, as special rules and exemptions also apply, but this is the basic family law requirement, unlike in most of the United States, where a married spouse is entitled to half of the combined assets and liabilities, generally.

COVID-19 now casts an uncertain shadow over this family law rule.

Assets have already substantially lost value during the pandemic, particularly investment holdings and likely the value of matrimonial homes, farms, etc.

The key dates are the date of marriage and the date of separation (referred to as the “valuation day”).

So, if the date of separation was early on during, or even before, the pandemic affected Ontario, there is substantial risk involved with utilizing the date of separation fair market value for assets to compute the equalization of net family properties.

It may create unfairness to the higher net worth spouse, forced to solely burden the economic impact of the virus, particularly if a settlement or trial does not take place for several months after the pandemic struck us.

If an asset is jointly-owned, the issue is less likely to arise, as both spouses typically, subject to a few exemptions, bear the prevailing market conditions post-separation. 

Furthermore, there is so much uncertainty about the future of the economy and market forces, the risk may actually be increasing as time passes during the pandemic.

A higher net worth spouse in these circumstances does, at law, have a remedy to assert to try to gain some relief.

Under the legislation for Ontario, the Court is empowered, subject to strict conditions, to reduce or vary an equalization payment by the higher net worth spouse to the other.

This is commonly referred to as an “unequal division” of net family properties. 

The relevant section of Ontario’s Family Law Act reads:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

The test to be given an unequal division by the Family Court is high and onerous. 

Essentially, applying the regular and usual family law must, in the special circumstances, be shocking and unconscionable to the Court.

The question is: does COVID-19 fall into that high threshold potentially?

Certainly the 2008 recession was considered by the Court to justify deviating from the otherwise normally-applied family law for equalization of net family property.

It seems, then, that COVID-19 would also be proper grounds to request an unequal division, in the right circumstances. 

Indeed, a spouse’s net worth may be substantially impacted by the pandemic between the date of separation and the time when the Court holds a trial, or there is a settlement reached.

What to do?

If a spouse has experienced a material decline in his or her net worth since the onset of the pandemic, before or after a separation date, careful consideration needs to be given to possibly seeking an adjustment to how the law would otherwise, normally be applied by the Court.

It may be that, due to the virus, there are justifiable reasons to assert that the high test has been met to warrant a lesser property settlement payment than would otherwise be required.

In addition, there are other important considerations before resolving a relationship breakdown during, or following, the pandemic, particularly relating to the content of the separation agreement that may be entered. 

Below is an excellent list of issues that need to be carefully reviewed before finalizing any settlement of a relationship breakdown during, or related to, the pandemic, published on April 20, 2020 by Lorne Wolfson, a lawyer at the Toronto firm, Torkin Manes: 

  1. In the absence of formal screening by a qualified third party screener, a family lawyer cannot know if his or her client is entering an agreement under duress or undue influence, the risk of which is particularly heightened if the parties are still co-habiting under the same roof. The standard solicitor’s certificate, “My client is not suffering from duress or undue influence,” should be amended to reflect the particular circumstances in each case.
  2. Property settlements that rely on asset valuations or support arrangements that are based on current or proposed incomes should be viewed with caution since the value of assets and the level of incomes could suffer dramatic changes within days of finalizing a settlement. For property division, an “if and when” asset division may protect both parties against an unfair and unexpected drop in the value of a major asset. Support arrangements should clearly articulate the income assumptions on which the settlement is based, so that there is no doubt if a future decline in income constitutes a “material change in circumstances” from that which prevailed at the time the agreement was signed.
  3. In order to avoid a dispute in the future as to what constitutes a “material change in circumstances,” the agreement should contain an acknowledgment that a change in either party’s income of X per cent or $Y is deemed to constitute a “material change.” The agreement should also formally acknowledge that a change in circumstances that was foreseeable at the time the agreement was signed may still constitute a material change in circumstances.
  4. When an agreement is being signed without full financial disclosure or without all of the information that would usually be required, it should clearly be expressed to be a temporary, without prejudice agreement that will stay in force until a future date or event (a further agreement, a future variation or review, or when the courts resume regular operations).
  5. Non-variable support agreements should be viewed with particular caution. In the past, many payors were prepared to pay a lump sum in exchange for a full and final spousal support release. Today, such agreements may be more fraught with risk. Even if the non-variation clause is drafted to permit a review if there is a “catastrophic” change in circumstances, that exception still leaves open the possibility of a dispute as to what constitutes a “catastrophic change.”
  6. Variation in child and/or spousal support can also be justified even if there have been no changes in the incomes of the parties. For example, s. 7 expenses that were previously being shared (childcare, summer camp, activities and access costs) may no longer be incurred. In the absence of these expenses, the level of both child support and spousal support may need to be adjusted.
  7. Given the health threat posed by the current pandemic, security for support and equalization payments takes on enhanced importance. The presence or absence of life insurance, the appropriate level of insurance and what insurance can be obtained at what cost if either party loses his or her employment are issues that should be canvassed.
  8. In a majority of cases, the time the children spend in the care of each parent will not need to be changed. However, where parents are now working from home, are not working at all because of the loss of their employment or the division of parenting time necessitates a change to the residential schedule, the impact of these changes on child and/or spousal support needs to be carefully considered.



 

 

 

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CKL SENIORS AND VULNERABLE RESIDENTS - CHARITIES AND NON-PROFITS - NEW FEDERAL EMERGENCY FUNDING

Today more federal funding was announced, focusing on the vulnerable in the City of Kawartha Lakes, including our seniors. 

The government allocated $350 million to support vulnerable Canadians through charities and non-profit organizations that deliver essential services to those in need.

The newly-announced Emergency Community Support Fund will flow through national organizations that have the ability to get funds quickly to local organizations that serve vulnerable populations. It will support a variety of activities, such as:

  • Increasing volunteer-based home deliveries of groceries and medications
  • Providing transportation services, like accompanying or driving seniors or persons with disabilities to appointments
  • Scaling up help lines that provide information and support
  • Helping vulnerable Canadians access government benefits
  • Providing training, supplies, and other required supports to volunteers so they can continue to make their invaluable contributions to the COVID-19 response
  • Replacing in-person, one-on-one contact and social gatherings with virtual contact through phone calls, texts, teleconferences, or the Internet

 

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IF I'M LAID OFF, OR CANNOT WORK, BECAUSE OF COVID-19, DO I HAVE TO PAY MY SPOUSAL SUPPORT? WILL THE COURT HELP ME OUT DURING THE PANDEMIC? WHAT YOU NEED TO KNOW.

WHAT CAN BE TAKEN TO COURT CURRENTLY?

Firstly, during Ontario’s State of Emergency, all limitation periods have been suspended. If you have a case that must be commenced, legally, by a certain date, that date is now extended at least until after the State of Emergency is ended.

Secondly, the Ontario Courts have made it very clear they are depending upon cooperation between parties to limit the number of hearings required, and avoid the need for Court proceedings whenever possible.

Thirdly, only “urgent” matters will be heard by the Court – whether a matter is “urgent” will require initial judicial review. If that threshold is passed, the Court will give directions for how the issues will legally be determined.

Urgency will be determined on a case-by-case basis. Matters which have been found to be urgent include those which:

  • were considered urgent prior to the suspension of Court operations;
  • are directly related to the COVID-19 pandemic;
  • may interrupt the closing of a real estate transaction;
  • involve a judgment debtor attempting to remove assets;
  • involve the expiry of a government-issued permit; and
  • involve termination of commercial leases.    

The Court has also in some cases extracted urgent issues from within broader legal matters.

Even where a matter is found to be urgent initially, the Court is likely to initially appoint a Justice to hear the matter and convene a case conference to determine the process to be followed for the remote hearing.

In some cases, the Court may also relax the legal formalities that would otherwise be strictly enforced, like how evidence is accepted by the Court – a case-by-case approach is being taken.

IS VARYING OR CHANGING SPOUSAL SUPPORT CONSIDERED URGENT?

COVID-19 may have removed or reduced a spousal support payor’s income, particularly if he or she owned/operated, or worked for, a “non-essential” business, per the Ontario Government’s continuing emergency order(s).

However, while that is certainly an urgent issue financially speaking, it may not be urgent legally.

Whether a spousal support payment may be varied or changed depends on several factors, including:

  • whether the parties were married to each other and, if so, the federal Divorce Act applies;
  • the specific language or wording of the parties’ separation agreement or Court order;
  • whether there has been a “material change in circumstances” that has some degree of continuity, rather than a temporary change, triggering the ability to review the support issues; and
  • other factors underlying the relationship when the agreement was signed or the Order was made and currently, such as the recipient’s need, the payor’s ability to pay, etc.

So far, the Court takes the position that support payor’s request to vary or change his or her spousal support payments does not qualify as an urgent matter in Family Court.

Rather, the Court indicates that requests to vary or change spousal support payments, if legally permitted to do so, may be made by payors retroactively at a later time.

There have been a number of cases to date indicating the Court’s position on this issue [Purdy v. Purdy, 2020 CanLII ONSC 1950; Baker v. Maloney, 2020 CanLII ONSC 1929, etc.]

Accordingly, both parties must use their best efforts to work together, to try to reach a temporary arrangement during the pandemic, even on a “without prejudice” basis.

Neither party will benefit from a surge in Family Court proceeding arising from COVID-19, when the Court’s operations expand.

While the pandemic continues, absence exceptional circumstances, neither a receiving nor paying party is likely to utilize the Family Court to demand, or vary, spousal support payments.

These are not fault-based, or blameworthy, circumstances for the most part – the pandemic was reasonably unforeseeable by most parties who previously separated.

As a result, practical sense and pragmatism must prevail, failing which delayed, protracted and challenging litigation will likely ensue.  

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MINISTRY OF LABOUR DOING 'BLITZ' INSPECTIONS OF ESSENTIAL BUSINESSES - EMPLOYEES CAN VOICE CONCERNS ABOUT HEALTH AND SAFETY DURING INSPECTION

Ontario’s Occupational Health and Safety Act (the “OHSA”) statutorily imposes duties on everyone in the workplace, including a positive duty on employers to take every precaution reasonable in the circumstances to protect employees’ health and safety.

Businesses deemed “essential”, or “non-essential” businesses continuing to operate remotely, must ensure their health and safety policies and practices meet the legal requirements and are consistent with public health orders and recommendations.

The Ontario Government has also ordered that a person responsible for an essential workplace continuing to operate must ensure the business operates in accordance with all applicable laws, including the OHSA, and compliant with all the advice, recommendations and instructions of public health officials.

To this end, Ontario’s Ministry of Labour has been “blitzing” essential businesses for health and safety inspections across Ontario, including to enable essential employees to express and voice their concerns, if any. 

Ontario’s health and safety inspectors are responsible for enforcing compliance with health and safety legislation in provincially-regulated workplaces in Ontario and have broad regulatory powers to address non-compliance, such as issuing orders to those in the workplace, who may also potentially face charges for non-compliance with legislation, with substantial fines and even incarceration as potential outcomes in certain circumstances in the event of a conviction for an occupational health and safety related offence.

According to the Ministry, inspectors conducted over 5,000 workplace inspections during March of 2020.

The Ministry has said inspectors will work with employers and employees to resolve issues, and shut down businesses where warranted.

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CKL BUSINESSES - BALANCING CYBER-SECURITY, EMPLOYEES' PRIVACY AND THE WORKING-AT-HOME RELATIONSHIP. TIPS AND WHAT YOU NEED TO KNOW.

Great article today in Kawartha Lakes This Week, featuring our advice and comments about balancing cyber security, employees' privacy and working-at-home relationship during the pandemic: 

______________________

Working online, from home? Protect yourself from cyber criminals

The COVID-19 Pandemic has forced many Kawartha Lakes businesses to rely on the online market for the first time

NEWS 03:00 AM by Sarah Sobanski  MyKawartha.com

As businesses head online to continue their work through the pandemic, they need to consider cybersecurity threats and their legal obligations regarding the confidentiality of personal information and remote work. - Torstar file photo

It takes careful planning to make it as a small-business owner – and COVID-19 has thrown many into the deep end of the online market without precedence.

Jason Ward, owner of Wards Lawyer PC, says he’s fielding nearly 100 emails a day filled with questions about work-from-home policies, privacy, COVID-19 regulations, support and more.

At Netmechanics, owner Graeme Barrie is busy, too. He’s working with the Innovation Cluster on cybersecurity workshops and advising businesses on cyber threats to their information and employees.

Many businesses are not only using new technology to do business, but using well-established tech in different ways such as sharing information via email they might have otherwise shared in a one-on-one conversations.

 

“Cyber criminals, they love a crisis,” Barrie says, adding that businesses should be vigilant when it comes to communications.

The video-conferencing application Zoom has been a popular choice for businesses since COVID-19 sent people to work from home. The app has seen its number of users skyrocket from around 10 million in December to more than 200 million users.

With its increasing popularity have come increasing privacy concerns. Various media outlets have reported security breaches such as easily accessing Zoom-recorded meetings online and cyber criminals hijacking meetings.

You can be held responsible if the information of your clients or your employees is hijacked, Ward says.

“Businesses are now required by law to have what’s called a privacy breach protocol workplace policy,” he says, for businesses that collect information online. The protocol outlines what steps a business will take if there is a breach of personal information.

“A small business in Lindsay might not have the resources to be as cyber-secure as a larger corporation,” Ward says, noting the government recognizes this in its legislation.

“But you must by law, if you are compromised, have a policy mitigating steps you will take to minimize the damage. If you have that policy, and you take those appropriate steps to satisfy (the government), then the penalty to you is not likely to be as severe.”

Ward adds that businesses need to make sure they have good privacy policies in general when it comes to protecting consumer information in compliance with federal and provincial laws – and that extends to online.

Why would cyber criminals want that information? Barrie says it's often for ransomware attacks, where cyber criminals will hold your information hostage for payment. They can also gain access to your computer and collect your information without you noticing.

“They make more money off the ransomware because data is the heart of so many businesses, they know that it’s critical,” he says.

He notes that startups may be the target of intellectual property theft or corporate espionage. Some small to medium-sized businesses may be the target as part of a supply chain to a larger company.

One way to gain access to your computer and information are phishing scams. These scams trick you into giving access to cyber criminals through links in emails or via text message.

For businesses who suddenly find themselves having to do everything online, Barrie’s best advice is to get educated. He says you can’t protect against what you don’t know about.

While e-learning and considering how cybersecurity and privacy legislation go hand in hand, business owners might also consider brushing up on workplace legislation and how employees are able to work from home through online connections.

Ward says Ontario’s Occupational Health and Safety Act doesn’t apply to working from home, but in a scenario such as this pandemic, it could be applied in the future. Business owners should consider developing a remote working policy.

“Managing the working from home relationship is a challenge,” he says. He notes employees are dealing with a lot at home from distractions to obligations – it can be challenging and stressful. Employers may need to make compromises.

Employers and employees need to work together to define expectations, including for productivity. Ward says there are applications to supervise remote work.

“Many businesses, the monthly revenue coming in relies on the productivity of the employees,” he says.

“Employees have to understand that if your output isn’t at a certain level, we have to look at alternatives for that particular employee.”

Understanding expectations can be imperative when businesses are struggling to sustain themselves until the end of the pandemic.

“I fully anticipate that we’re going to be seeing new legislation ameliorating what the consequences are for having to lay people off, particularly if you were declared a non-essential business.”

by Sarah Sobanski

Email: ssobanski@mykawartha.com

 

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CKL BUSINESSES - OUR TOP 12 TIPS TO HELP YOU WITH YOUR COMMERCIAL RENT DURING THE PANDEMIC

CKL businesses leasing commercial property from an inflexible landlord, and which cannot afford to pay ongoing commercial rent, should consider taking the following steps:

[1]    promptly request your landlord to apply for the new Canada Emergency Commercial Rent Assistance (CECRA) and to relieve you from your monthly rent for April, May and June, 2020;

[2]    apply for the expanded Canada Emergency Response Benefit, including if you are self-employed, or you paid yourself dividends from your incorporated small business;

[3]    request your landlord to act co-operatively, reasonably and flexibly, particularly if you are a non-essential business, as specifically directed by both the federal and provincial governments;

[4]    request your landlord to agree to a ninety-day, interest-free rental deferral, with the possibility of further extension depending on the ongoing status of the virus;

[5]    if your landlord remains inflexible and it strictly intends to enforce the lease, consider having your qualified lawyer send a letter affirming your position and threatening legal action against the landlord, including the payment of costs;

[6]    review your lease carefully for:

(a) a force majeure clause;

(b) health emergency clauses;

(c) liability protection clauses,

and any other clauses that may allow you to argue frustration of the commercial lease and, therefore, absolve you of liability for your obligations, including rental payment;

[7]    speak to your insurance broker about the availability of business interruption and any other available insurance that may assist you, including to pay rent, as explained above – consider providing your contact information for the ongoing Ontario class action lawsuit against insurers who have denied this coverage during COVID-19;

[8]   if necessary, seek assistance from your lawyer to apply for relief from forfeiture, subject to any further governmental steps that may be taken in the near future to assist you, or the landlord;

[9]   if your landlord sues you for any damages, speak to your qualified lawyer about defending the claim based on frustration of contract;

[10]   contact your M.P.P. and request that the Ontario government immediately and legislatively, or by other suitable measure, ban the forfeiture of commercial leases from March 15, 2020 until June 30, 2020 (or longer, if necessary, due to the pandemic);

[11] ensure all of your dealings with your landlord are in writing or, alternatively, make detailed notes about your verbal dealings with your landlord (i.e., potential evidence); and

[12] continue to monitor the expanding financial economic responses plans by both the federal and provincial governments, which will continue to change and expand during the pandemic.

For more information from us about the step-by-step guide to assist you, go here:  http://wardlegal.ca/31586368607060

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PARENTING DISPUTES DURING COVID-19 - THE CHILD IS PROTECTED BY THE CONSTITUTION, TOO - MINIMIZING RISK OF EXPOSURE IS ESSENTIAL

Section 7 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11,.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

During the COVID-19 pandemic, parenting disputes potentially trigger this constitution right; namely, security of the person, for not only the child or children at issue, but both parents, too. Canada’s Supreme Court has recognized and acknowledged this right for both in family-related disputes. 

To the extent the parents cannot co-operatively resolve their parenting arrangements by reasonable, mutual agreement, but rather one or both requests the intervention of the Family Court on the basis of urgency, the Court will be mindful of a child’s constitutional right to security of the person, which arguably includes limiting, or minimizing, exposure to COVID-19.

If a child is to be removed from the care of a parent, it must “only be done in accordance with the principles of fundamental justice which are found in the basic tenets of our legal system.”

These principles of fundamental justice are both substantive and procedural in nature.

The section 7 right of the security of the person is recognized judicially to protect both the physical and the psychological integrity of the individual [R. v. Morgenthaler, 1988 CanLII 90 (SCC)].  

Any judicial decision by the Court impacting the removal of a child from a parent’s care must incorporate a fair and reasonable hearing process by the Court [Kawartha-Haliburton Children Aid Society v. M. W., 2019 ONCA 316, paras. 68 and 69].

As noted by the Court in Ontario recently, “Given the above, I believe that the true test of our law and the fair administration of the law will be measured in how the most vulnerable in our society are treated and the administration of justice is dealt with in difficult times such as these.” [Children’s Aid Society of the Region of Peel v. M.G., 2020 ONCJ 167].

So, in any matter affecting the security of a child during the pandemic, the process for judicial determination must be both substantively and procedurally fair, not only for the child in question, but for the parents or guardians who cannot reasonably agree to the temporary arrangements during the pandemic.

 

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CKL BUSINESSES STILL OPERATING OR ABLE TO WORK REMOTELY - KEY INFO FOR THE EXPANDED WAGE SUBSIDY (75%) NOW AVAILABLE TO KEEP OR HIRE BACK EMPLOYEES. WHAT YOU NEED TO KNOW.

On April 11, 2020, the COVID-19 Emergency Response Act, No. 2, which includes the Canada Emergency Wage Subsidy (the “CEWS”), received Royal Assent and is now available to employers.

Am I eligible?

The CEWS is available to all “eligible employers,” which includes individuals, corporations, partnerships, non-profits and registered charities. In order to qualify for the CEWS, employers must attest to and provide documentation supporting a decline in monthly revenues of at least 15% in March, and 30% in April and/or May, as compared to either:  (i) that same month in 2019; or (ii) the average of the employer’s January and February, 2020 revenue. In calculating revenue for eligibility purposes, employers may use either an accrual (as-earned) or cash (as-paid) accounting method. However, whichever method is chosen must be used in determining eligibility for each of the three months. Affiliated employers are able to compute revenue on a consolidated basis, or on an individual basis. There are special rules for computing revenue for employers who engage in non-arm’s length transactions such as sales to affiliated corporations.

How much is the CEWS?

The CEWS program provides employers with a wage subsidy for a given employee of up to $847 per week, retroactive to March 15, 2020, for eligible remuneration paid for the period between March 15, 2020 and June 6, 2020 (even newly hired employees). The eligible periods to claim the CEWS are: March 15 to April 11, 2020, April 12 to May 9, 2020, and May 10 to June 6, 2020. The CEWS does not obligate the employer to top-up the employee’s wages above the subsidized amount.

How do I apply for the CEWS?

Eligible employers can apply for the CEWS through the Canada Revenue Agency’s My Business Account portal. Employers will have to attest to and provide records of their reduction in revenues and remuneration paid to employees. An employer that qualifies for one subsidy period (e.g. March) automatically qualifies for the subsequent period (e.g. April).

Does the CEWS replace the 10% temporary wage subsidy announced in March?

The CEWS does not replace the 10% temporary wage subsidy announced by the federal government in March. Employers that are not eligible for the CEWS may still qualify for the 10% subsidy, which remain available to certain categories of employer and does not require a reduction in revenue in order to qualify.

Can I get both subsidies?

An employer cannot take advantage of both subsidies simultaneously. For employers that qualified for the temporary wage subsidy and the CEWS, the amount of the temporary wage subsidy will be deducted from the subsidy under the CEWS program.

Does this mean that I can re-hire all of my employees - a limitation on your reimbursement?

By providing a subsidy of up to $847 per week per employee, with no overall limit, the CEWS is designed to encourage employers to re-hire employees that had to be terminated or laid-off due to COVID-19. However, in deciding whether – and when – to bring back employees, employers should keep in mind that a subsidy will not be available in respect of remuneration paid to employees that have been without remuneration for more than 14 consecutive days in a given eligibility period. This means that if an employer terminated an employee on April 11, rehires the employee but that employee does not receive remuneration for at least 14 consecutive days between the April, 12 to May 9, 2020 eligibility period, the employer would not be eligible for a wage subsidy in respect of remuneration paid to that employee during that period.

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NEW HEALTH UNIT ORDER - WHEN WE ARE LEGALLY REQUIRED TO SELF-ISOLATE. WHAT YOU NEED TO KNOW.

On April 14, 2020, the local Medical Officer of Health issued the following Class Order under Section 22 (5.01.1)  under the Health Protection and Promotion Act. This order is designed to protect the health of local residents by reducing the spread of COVID-19 in the City of Kawartha Lakes. 

The order applies to ALL persons in the City of Kawartha Lakes who:

  • are identified as a person diagnosed with COVID-19
  • have the signs and symptoms of COVID-19, have been tested for COVID-19 and are awaiting the results of their test
  • otherwise have reasonable grounds to believe they have symptoms of COVID-19,  or
  • are a close contact of a person identified in the above points.

As of April 14, 2020 at noon, you must:

  • Isolate yourself without delay as instructed by the HKPR District Health Unit. This includes: remaining in your home or isolation facility. Do not go outside, unless on to a private balcony or enclosed yard where you can avoid close contact with others. You must not have any visitors into your home except as permitted by the Health Unit.
  • Remain in isolation until the expiry of a 14-day period that begins on the day on which you first show symptoms, are tested, or are diagnosed with COVID-19 (whichever is earliest, or on the last day of close contact). Follow these guidelines unless instructed otherwise by the Health Unit. 
  • During the self-isolation period, reduce exposure to others to prevent the spread of infection or potential infection from COVID-19. Follow infection control instructions on the HKPR District Health Unit website (www.hkpr.on.ca) or those given to you by the Health Unit or any other staff of a healthcare facility to which you may seek or receive treatment.
  • Keep away from vulnerable persons. Follow any further instructions provided by the Health Unit pertaining to COVID- 19. In particular, you should seek clinical assessment over the phone – either by calling your primary care provider’s office or Telehealth Ontario 1-866-797-0000. If you need additional assessment, your primary care provider or Telehealth Ontario will direct you to in-person care options.
  • Seek prompt medical attention if your illness worsens by calling 911 and telling responders of your COVID-19 related diagnosis or symptoms.
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CKL BUSINESSES - CAN'T PAY RENT? INFLEXIBLE LANDLORD? YOUR STEP-BY-STEP GUIDE TO KEEPING YOUR RENTED SPACE AND PAYING YOUR COMMERCIAL RENT (OR DEFERRING IT). PROTECTING YOUR BUSINESS TO MOVE FOWARD.

Commercial tenancy relationships in Ontario are governed by Ontario’s Commercial Tenancies Act (the “CTA”) and the lease agreement itself.

They are largely a matter of contract, in terms of rights and obligations, rather than statutory rules.

During Ontario’s State of Emergency (as of Mar. 17, 2020), many businesses in the City of Kawartha Lakes (“CKL”) have been deemed non-essential and forced to close, or substantially reduce operations. Even “essential” workplaces face lay offs, work shortages and possibly closure, at least temporarily.

For both essential and non-essential businesses, tremendous strain is imposed on commercial tenancy relationships.

It is estimated that up to one-half of businesses may be unable to pay commercial rent during the pandemic, particularly those in the food, human services and hospitality sectors.

While the federal government has recently announced financial support for landlords, thereby alleviating tenants from paying rent temporarily, the details have yet to be revealed.

Effectively, it is critical that landlords and commercial tenants act co-operatively, reasonably and flexibly during this crisis, in both their best interests. For example, owners of commercial spaces should consider offering independent tenants an automatic, sixty-day, interest-free rental deferral, with a possibility of further extension depending on the ongoing status of the pandemic.

However, some landlords may not be doing so, leaving the tenant in very difficult circumstances. 

To address landlords that do not act flexibly, the Ontario government (or federal government) must consider proactively enacting legislation, or other measure, prohibiting the forfeiture of commercial leases as of March 15, 2020 to, for example, June or July 30, 2020, or possibly longer depending on the development of the crisis, for commercial tenants failing to pay rent. 

If no deferral arrangement, or other solution, is agreed to by the landlord and tenant themselves, and there is no legislative intervention by either government, the issue becomes challenging to address, legally. These are unique, novel and unprecedented circumstances, legally speaking. It will be difficult to decide which commercial tenancy party should be burdened by the financial loss caused by a global pandemic, beyond either party’s reasonable expectations or control. How is the loss, which both will suffer, to be legally allocated?

Even if a deferral is agreed to, or the government intervenes to grant relief from forfeiture for non-payment of rent, it may not resolve the issue of resumption of the lease when the parties are able, or permitted, to do so. For example, a commercial tenant may financially be unable to accumulate and pay rental arrears when operations resume – rather, it is likely the business will initially struggle to pay current expenses to ramp up and continue, let alone back-pay of rent. 

WHAT CAN THE LANDLORD DO FOR NON-PAYMENT OF RENT?

Currently in Ontario, if commercial rent is not paid under the terms of the lease, and subject to the terms of the lease, a commercial owner/landlord could:

(a)   affirm the lease and sue for rent or for performance of an obligation (not available when rent distress is in progress) and commence an action in the Superior Court of Justice;

(b)   affirm the lease and re-enter and re-let the commercial premises (only if the landlord has reserved a right of re-entry in the lease or has received a Court order to the same effect);

(c)   affirm the lease and exercise rent distress rights (seizure of property assets); or

(d)   accept the repudiation of the lease, terminate and re-enter, and sue for the rent that would otherwise have been payable for the balance of the lease term.

It is likely that most commercial landlords with small-business tenants will elect (d) above during the pandemic.

CURRENTLY NO JUDICIAL ENFORCEMENT OF COMMERCIAL EVICTIONS:

However, due to the pandemic, the owner’s ability to take action, including to terminate, re-enter and sue for damages under (d) above, is currently fettered. 

Ontario has ordered that the Landlord and Tenant Board (“LTB”) may neither consider nor issue eviction orders in relation to residential tenancies and that sheriffs must postpone all scheduled eviction enforcements until further notice.

However, commercial tenancies are subject to the CTA, not governed by the LTB. Therefore, disputes about commercial tenancies are determined by the Superior Court of Justice.

The CTA provides that a commercial landlord may repossess a leased premises fifteen days after the tenant fails to both: (a) pay rent; and (b) remedy the failure in the interim. Notably, repossession by reason of the tenant’s non-payment of rent does not require judicial intervention or approval. However, it is usually recommended that such steps by a commercial landlord be sanctioned by the Court, ideally in advance. The resolution of all other disputes is in the Superior Court of Justice of Ontario (“ONSC”), rather than the LTB.

Moreover, the ONSC currently limits operations to only urgent matters and, therefore, the ability for commercial landlords to effect lease terminations will be greatly constrained legally, practically and by reason of public policy considerations and perceptions.

Urgent matters” are defined by the ONSC as:

  • urgent and time-sensitive motions and applications in civil matters, where immediate and significant financial repercussions may result if there is no judicial hearing; and
  • outstanding warrants issued in relation to Small Claims Court or Superior Court civil proceedings.

If a commercial landlord’s proceeding does not qualify, it is likely to be adjourned.

Even if an action could be brought in the ONSC, enabling the landlord to obtain an order for possession of the premises, the Sheriff has been instructed not to enforce the order until further notice.

LIMITATION PERIODS ARE ALSO SUSPENDED:

By an Order in Council, under sub-section 7.1 of Ontario’s Emergency Management and Civil Protection Act, limitation and procedural time periods are suspended in Ontario for the duration of this emergency. The suspension is retroactive to March 16, 2020. Therefore, for potential claims by commercial landlords that have already arisen, but for which the limitation period has not expired, and for claims that may arise after March 16, 2020, the limitation period is suspended until further notice.  

STEPS TO TAKE IF YOU ARE A COMMERCIAL TENANT:

If you are a commercial tenant unable to pay rent, with an inflexible landlord, take these steps:

[1]     STEP ONEApply for the CEBA:

On April 16, 2020, the federal Government announced additional measures to support small businesses, including expanding the Canada Emergency Business Account (CEBA), which provides interest-free loans of up to $40,000 to small businesses and not-for-profits, to include businesses that paid between $20,000 and $1.5 million in total payroll in 2019. This new range will replace the previously qualifying range of $50,000 to $1 million in total payroll.

Commercial tenants struggling financially should apply for this interest-free line of credit, $10,000 of which is forgivable by the government if it is repaid by December of 2020.

[2]      STEP TWORequest your landlord to apply for CECRA:

In addition to the expanded CEBA above, the federal Government also introduced Canada Emergency Commercial Rent Assistance (CECRA) for small businesses. The program will provide loans, including forgivable loans, to commercial property owners who in turn will lower or forgo the rent of small businesses for the months of April (retroactive), May, and June, 2020. Implementation of the program will require a partnership between the federal government and provincial government, which is responsible for property owner-tenant relationships. 

[3]      STEP THREEReview your commercial insurance policy:

[a]     Check for Business Interruption insurance coverage:

You should also consider contacting your insurance broker about your commercial insurance policy and the availability of business interruption (or other available) insurance coverage.

Currently most insurers in Ontario are denying this coverage, but there is already a class action lawsuit commenced in Ontario by commercial tenants claiming damages against those insurers for the denial.

For more information from us about business interruption coverage, go here: http://wardlegal.ca/31585663827877

[b]     Check for other potential insurance coverage:

There may be other potential coverage under your tenant’s policy, such as:

1.    Civil Authority Insurance – covering losses arising from a government orders preventing access to the insured property. Of course, for this coverage to come into effect, there must be a governmental order. Neither governmental recommendations, nor private party decisions (i.e., closing office space), will meet this threshold. However, they may be addressed in a force majeure clause. In this case, the Ontario government has ordered the closure of non-essential workplaces during the State of Emergency, potentially triggering this insurance coverage; and

2.    Liability Insurance – covering losses arising from “third party” claims - a “third party” is anyone not insured under the policy, which could include the landlord or the tenant. Currently it is unsettled whether any liability will arise from third parties contracting COVID-19 from, or while on, an occupier’s premises. However, these policies will come into effect for defending such claims if and as they arise.

[4]      STEP FOUR - Review your lease:

Carefully review your lease agreement and check for:

[a]   dates to meet any obligation, such as rent due date, completion of landlords’ or tenants’ work, expiry dates, damage and destruction time periods;

[b]   any clause obliging you to stay open for business during the term of the lease, given the Ontario government’s emergency order to close all non-essential businesses – you may be forced to close, or the landlord may have to close its building and, if so, either the doctrine of frustration or force majeure may be triggered, as explained below; and

[c]   any clause requiring you to comply with all laws – with orders and legislation being issued by all levels of government, you and the landlord need to be aware of the ongoing changes, respectively.

[5]   STEP FIVE

Review your lease for any “Force Majeure”/Unavoidable Delay Clause(s):

A “force majeure” event is an unforeseeable circumstance that prevents a person from performing an otherwise valid agreement or contract. If a person is unable to perform his or her contractual obligation due to unforeseen events, beyond his or her control, a force majeure clause may be triggered to validate the non-performance. Force majeure clauses can suspend the timeliness of obligations and are a matter of negotiation.

These clauses may, in certain circumstances, excuse a tenant’s failure to perform contractual obligations, like paying rent. They are commonly incorporated into commercial leases.

For example, your lease may contain a clause requiring you to stay open and operate during regular business hours during the lease. If so, and if you are deemed a non-essential business by government decree, it may trigger your ability to successfully argue force majeure, thereby relieving you of your contractual non-monetary obligations under the lease.

It is important to review your lease for timelines and deadlines that are, or will be, affected by the pandemic.

Most commercial leases contain a force majeure clause. Generally, the clause will provide that if any of the described events occur, which significantly affects a tenant’s ability to perform the lease obligations, the tenant will not be required to perform the obligation, either for as long as the event continues or permanently. However, in commercial leases, this virtually always excludes the payment of rent and the surrender date from the suspension.

So, if your lease contains a force majeure clause, read it carefully. In most commercial leases, those clauses expressly exclude a tenant’s obligation to pay rent. As a result of COVID-19, many commercial tenants that, by government emergency order, cannot operate and, therefore, generate revenue, are forced into a position of breach of their commercial leases.

Landlords would, if nothing were changed, be able to terminate the lease, replace the tenant and sue for unpaid rent under the lease, both past and future. A result that simply cannot arise in the CKL or elsewhere in Ontario.   

Force majeure clauses are also narrowly interpreted, which means the words used to identify the triggering event are narrowly construed. To be relied upon successfully, a force majeure clause must both: (a) be in the lease itself; and (b) expressly describe the event causing the inability to perform, or the delay in performance. If there is no express force majeure clause, it will not be implied into the agreement by the Court.

For an event to be considered a force majeure event, it must: (a) be unforeseen; (b) render performance of the obligation “impossible” (not merely more costly or difficult, unless cost or difficulty are expressly referenced); and (c) be the actual and direct cause of your inability to meet your obligation, as distinct from merely being incidental.

Note that many force majeure clauses require a tenant or landlord to give notice to the other and other affected parties that the “event” is, or will, result in a failure to meet one or more obligations under the agreement. For example, maintenance and repair obligations. Such notice allows the other party or parties to take steps to mitigate, if possible. There may be specific requirements for the notice in the lease agreement. A party failing to perform a contract must also consider what, if any, steps are available to mitigate the damages that may be caused due to the non-performance.

For more information from us about force majeure, go here: http://wardlegal.ca/the-virus---does-it-cancel-contracts-rental-agreements-separation-and-parenting-agreements-maybe---read-on

[6]   STEP SIX

Review your lease for Health Emergency” Clauses and Operation of Building and Control of Common Areas:

Health emergency” clauses allow a landlord to limit or control access to the building, if required or recommended by the authorities. Similar to a force majeure clause, a health emergency clause provides that where there is a triggering event (which is typically described with a non-exhaustive list of “epidemic”, “pandemic”, “disease”, “contagion”, etc.), the landlord will have increased control over the common areas and will be permitted to create new rules and regulations regarding the operation of the building.

These clauses may permit a landlord to close the building (or parts of the building), control access to the building and permit a landlord to implement new health-related rules and regulations, which the tenant, its employees and invitees must follow. These clauses may also provide for how additional services for the building are to be paid. For example, increased sanitation and cleaning services may be undertaken. Additional support by property managers may be required to respond to COVID-19. The cost of these services may be passed on to tenants through additional rent or operating cost provisions in the lease. However, if not, a health emergency clause may permit the landlord to charge back these costs to the tenants.

Finally, these provisions may have a force majeure element, too. If the health emergency exists, such as COVID-19, the landlord will not be in default if it fails to comply with its maintenance and repair obligations until health emergency ends.

In addition to business interruption insurance coverage, some insurance policies may also incorporate broadly-worded ‘loss of attraction’ or even ‘pollution’ clauses, particularly for industrial commercial tenancies, which potentially could trigger insurance coverage and, if so, financial assistance with paying rent and utilities during the pandemic.

[7]     STEP SEVENConsider applying for relief from forfeiture:

If rent is unpaid and the landlord either terminates the lease, per (d) above, or otherwise distrains or re-possesses the premises, the tenant may also apply to the Court to relieve it from the forfeiture under the lease [Courts of Justice Act, s. 98 (“CJA”)].

The Court is empowered to reinstate the tenancy, even though the lease may have been validly terminated by the landlord for non-payment of rent.

Specifically, the CTA, sub-section 20(1), reads:

Relief against re-entry or forfeiture

  1. (1) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, whether for non-payment of rent or for other cause, the lessee may, in the lessor’s action, if any, or if there is no such action pending, then in an action or application in the Ontario Court (General Division) brought by the lessee, apply to the court for relief, and the court may grant such relief as, having regard to the proceeding and conduct of the parties under section 19 and to all the other circumstances, the court thinks fit, and on such terms as to payment of rent, costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future as the court considers just.”

 

In addition to this relief from forfeiture remedy, the Court “may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just” [CJA, s. 98].

The Court also has a general, inherent authority and ability to grant relief from forfeiture, beyond these statutory provisions. While it is entirely discretionary to the Court, which will review each case on a case-by-case, factual basis, the Court is likely to consider:

- the conduct of the tenant and the gravity of the breach;

- whether the purpose or object of the right of forfeiture in the lease was essentially to secure the payment of money; and

- the disparity or disproportion between the value of the property forfeited and the damages caused by the breach.

The Court is also likely to consider other circumstances, too, specific to the parties themselves and their specific lease agreement, such as their contractual history, the conduct of both parties and whether a party attempted to act reasonably or with good faith, or act otherwise. 

Prior to the onset of the pandemic, generally speaking, the Court would often grant relief from forfeiture to a commercial tenant, if the tenant could pay up the arrears and carry on paying the accruing rent. If money or some additional time were capable of resolving the problem and restoring the status quo arrangements, the Court is likely to favour that outcome. However, pre-COVID-19, the Court usually required the tenant in default to pay all arrears owing to be granted relief from forfeiture, conditionally. 

But now what? COVID-19 has imposed unique, novel and entirely uncertain circumstances upon landlords and tenants, entirely without blameworthy conduct. The law has not yet addressed relief from forfeiture when a business is deemed non-essential by government order and forced to close, or substantially reduce operations. Physical distancing and other containment measures also impact significantly the ability for both essential and non-essential businesses to operate and generate regular revenue to pay financial obligations ongoing, like commercial rent.

While it has yet to be tested judicially, presumably the law will need to evolve and adopt to COVID-19, including by granting relief from forfeiture without requiring the payment of all arrears or, at least, a structured program to do so reasonably affordable to the tenant and its specific circumstances.

On the other hand, the landlord, which may rely on commercial rent payments to pay its own mortgage for the building, must avail itself of the mortgage deferral options now available through the large financial institutions, which must co-ordinate with the non-payment of rent by the tenant. 

Due to COVID-19, if a commercial tenant, particularly a non-essential business, applies for relief from forfeiture, the Court will need to expand its review and consider additional circumstances, such as:

[1]    that the tenant may be required to close, or reduce operations, by government decree;

[2]    the bargaining power and economic status of each party, as relief should more likely be granted to small business owners occupying premises owned by larger, commercial property companies, in particular;

[3]    the ability of the landlord to seek deferral of underlying mortgage payments, or other obligations, if the landlord can demonstrate reliance on the tenant’s rent payments to pay those monthly obligations; and

[4]    a fair and sensible allocation between the specific parties for the losses mutually experienced due to the global pandemic, including allocating those losses reasonably and with a view to the public’s best interest to restore the economy and commerce as soon as possible.

[8]      STEP EIGHT - Consider the doctrine of frustration of contract:

If there is no force majeure clause in the lease, a commercial tenant is not necessarily without a remedy for an unforeseen event, such as COVID-19, that causes the tenant to be unable to perform its obligations under the lease.

The legal doctrine of frustration provides that where the occurrence of an event results in a contract becoming fundamentally different in character from what the parties originally intended, the contract may be terminated without liability. However, a fairly high threshold must be achieved for the doctrine will be invoked by an Ontario Court and, if so, it means that the contract will be terminated (and not merely suspended for the duration of the event). Frustration will only apply where the event or circumstance was unforeseeable and not the fault of either party.

Presumably COVID-19 would potentially qualify as the triggering event, but every case is likely to be considered on a case-by-case basis. 

In Ontario, the relevant legislation is the Frustrated Contracts Act (the “FCA”), which under sub-section 2(1), affirms that it applies “to any contract that is governed by the law of Ontario and that has become impossible of performance or been otherwise frustrated and to the parties which for that reason have been discharged. The FCA also deals with the adjustment of rights and liabilities between the parties when a contract has been frustrated.

If a lease is terminated by the landlord and the tenant does not apply to the Court for relief from forfeiture, the landlord may also sue the tenant for back and future rent and any other damages arising from the defaulted tenancy.  

If so, the tenant should rely on the FCA, or the doctrine of frustration generally, to release both parties from their contractual obligations, respectively, including the obligation to pay rent.

While economic downtown historically has been held by the Ontario Courts not to give rise to a frustration of contract, times are now dramatically different. The Court must now re-evaluate the law in the face of COVID-19 and adopt to achieve fairness and reasonableness during the pandemic, to both parties. It would be inconceivable for a Court to conclude, for example, there can be no frustration when a small business is ordered to shut down by a provincial emergency order.

It is likely that a defence related to frustration will prevail for a tenant that is sued, but every case is likely to be reviewed on its own merits and a case-by-case basis. 

SUMMARY:

Therefore, if you are a commercial tenant who cannot pay your rent and: (a) your landlord will not act flexibly or responsibly; and (b) neither the federal nor provincial governments intervene, so that everything above still applies, you should take these steps:

[1]    request your landlord to apply for the new CECRA;

[2]    apply for the expanded CEBA;

[3]    request your landlord to act co-operatively, reasonably and flexibly, particularly if you are a non-essential business, as specifically directed by both the federal and provincial governments, in writing;

[4]    request your landlord to agree to a ninety-day, interest-free rental deferral, with the possibility of further extension depending on the ongoing status of the virus, in writing;

[5]    if your landlord remains inflexible and it strictly intends to enforce the lease, consider having your qualified lawyer send a letter affirming your position and threatening legal action against the landlord, including the payment of costs;

[6]    review your lease carefully for:

(a) a force majeure clause;

(b) health emergency clauses;

(c) liability protection clauses;

and any other clauses that may allow you to argue frustration of the commercial lease and, therefore, absolve you of liability for your obligations, including rental payment;

[7]    speak to your insurance broker about the availability of business interruption and any other available insurance that may assist you, including to pay rent, as explained above;

[8]   if necessary, seek assistance from your lawyer to apply for relief from forfeiture, subject to any further governmental steps that may be taken in the near future to assist you, or the landlord; and

[9]   if your landlord sues you for any damages, speak to your qualified lawyer about defending the claim based on frustration of contract.

You might also call your M.P.P. and request that the Ontario government immediately and legislatively, or by other suitable measure, ban the forfeiture of commercial leases from March 15, 2020 until June 30, 2020 (or longer, if necessary, due to the pandemic). 

 

 

 

 

 

 

 

 

 

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IMPORTANT CHANGES TO THE CERB - MORE NOW QUALIFY - YOU CAN MAKE UP TO $1,000 WHILE GETTING THE BENEFIT - YOU CAN RECALL FOR SHORT PERIODS WITHOUT DISQUALIFYING YOUR EMPLOYEES - WAGE TOP-UPS FOR ESSENTIAL WORKERS. WHAT YOU NEED TO KNOW.

The Canada Emergency Response Benefit (the "CERB") has been expanded, now offering more financial/wage support to low-income, essential workers.

The CERB eligibility rules have been changed to:

  • allow people to earn up to $1,000 per month, while collecting the CERB;
  • extend the CERB to seasonal workers who have exhausted their EI regular benefits and are unable to undertake their usual seasonal work as a result of the COVID-19 outbreak; and
  • extend the CERB to workers who recently exhausted their EI regular benefits and are unable to find a job or return to work because of COVID-19.

These changes will be retroactive to March 15, 2020.

So, employers that need to recall employees for short periods of time now may do so, without risking the employees' entitlement to the CERB. 

In addition, if an essential worker makes a salary that is less than, or similar to, what he or she would receive from the CERB, the government will work with Ontario through a new transfer to cost-share a temporary top-up for the salaries of workers deemed essential in the fight against COVID-19 and who make less than $2,500 a month.

More details as to the application and delivery of this measure will be released shortly.  

What employees will be deemed essential for this wage top-up has yet to be confirmed.  It appears it will be workers who are "front-line in hospitals and nursing homes, those ensuring the integrity of the food supply, or providing essential retail services to Canadians."

 

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CKL SMALL BUSINESSES - BETTER ACCESS TO THE $40,000 INTEREST-FREE LINE OF CREDIT - HELP WITH PAYING YOUR COMMERCIAL RENT IS ON THE WAY. WHAT YOU NEED TO KNOW.

Today the federal Government announced:

[1]      CEBA:

Eligibility for this interest-free line of credit (loan) has been expanded.

The previously announced program, which offers businesses up to $40,000 in a government-backed loan, will now be available to businesses with payrolls worth between $20,000 and $1.5 million.

Previously, the interest-free loan was only for those with payrolls worth between $50,000 and one million.

Up to $10,000 of the loan is non-repayable.

The government also indicated that 195,000 loans amounting to about $7.5 billion have been approved since the loan program opened for applications a week ago.

Expanding the access to the program will obviously help more small businesses access the funds, but new businesses, the self-employed and businesses that pay with dividends still will not qualify.

[2]      COMMERCIAL RENT ASSISTANCE:

For small businesses (owner/operators), financial assistance will be made available to pay commercial rents for April, May and June.

The plan is not yet formalized, but will worked out with the Ontario premier, because rent issues fall under provincial jurisdiction.

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MY 13-WEEK TEMPORARY LAY OFF ENDS SOON - NOW WHAT? GUIDE TO CKL BUSINESSES AND EMPLOYEES

Some CLK businesses have been deemed non-essential and, therefore, cannot operate during the emergency.

Other essential businesses, despite being legally permitted to operate, have had to consider or undertake downsizing, restructuring, or otherwise cost-cutting.

Either way, as a result, local businesses have had to consider or have implemented temporary or permanent layoffs.

While temporary layoffs can be an effective means of cost-saving, they can also be risky if employers have not protected their right to temporarily lay off employees in their employment contracts.

The Ontario Employment Standards Act, 2000 (the “ESA”) allows employers to temporarily lay off employees, so long as the layoff lasts for no more than 13 weeks in any consecutive 20-week period.

However, if a layoff extends for more than 13 weeks in any consecutive 20-week period, but lasts less than 35 weeks in any consecutive 52-week period, the layoff will still be considered temporary in a few exceptional cases (i.e., if the employer has continued to pay the employees substantially and/or provides them with benefits, if the employees would be entitled to receive Employment Insurance or the CERB, or if the employees are subject to a timely recall).

The 20-week period is a “rolling window” - if an employee is laid off for even one day more than 13 weeks in any consecutive 20-week period, the layoff will not be temporary. The same is true of the 52-week window described above, which applies in limited circumstances. If the applicable threshold is exceeded, termination is triggered, and is deemed to have retroactively occurred on the first day of the layoff.

In addition, a temporary lay off may be extended for any period, if the employee consents. If so, an employer is allowed to continue the lay off to coincide with the length of the pandemic. 

Despite an employer’s right to temporarily lay off an employee under the ESA, where an employment contract does not provide for the possibility of such a layoff, Ontario courts have often favoured employees who claim to have been constructively dismissed.

Accordingly, employers face risk if they lay off an employee for common law damages, even where they have complied with the temporary layoff provisions of the ESA.

However, there are cases in Ontario in which the Court has inferred a right to impose a temporary layoff in the absence of an express contractual right in limited circumstances.

For example:

  • the employer has a history of temporary layoffs for various reasons, including a shortage of work;
  • the employer is in an industry where temporary layoffs or breaks in service are common;
  • the employer has a policy in place to warn employees that temporary layoffs are possible when there is a downturn in business or a shortage of work; and/or
  • the employer continues to provide benefits to laid off employees during the layoff term

Despite this, employment contracts should incorporate a standard lay off clause protecting the employer’s right to temporarily lay off employees in accordance with the ESA and without further notice or compensation.

 

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TESTING AND SCREENING EMPLOYEES FOR THE VIRUS TO PROTECT OTHERS - WHAT IS ALLOWED? WHAT ABOUT PRIVACY? WHAT CKL BUSINESSES AND EMPLOYEES NEED TO KNOW

While essential workplace employers have a statutory duty to take reasonable steps to protect the health and safety of employees, privacy laws still apply during the pandemic.

Privacy laws impact what employers are permitted to do in terms of screening and monitoring employees during the COVID-19 crisis.

Ontario’s Privacy Commissioner has not yet provided any guidance with respect to COVID-19 testing and screening by employers during the pandemic.

While the Privacy Commissioner has expressed that privacy laws continue to apply in these circumstances, it has also qualified that such laws are not meant to be applied as barriers during the course of public health emergencies.

In other words, privacy laws should not obfuscate employers taking reasonable precautions to ensure the health and safety of employees.

Can employees be asked if they have COVID-19 symptoms?

Employers should not employees if they have virus symptoms, if employees are not displaying symptoms.

Employers must have reasonable grounds to believe an employee is symptomatic and, if so, requesting information from the employee may be appropriate.

What is reasonable in the circumstances depends on the workplace – some workplaces inherently involved more risk, such as hospitals and long-term care facilities.

Employers should adopt an infectious disease or communicable illness policy requiring employees to proactively disclose if they have, or live with someone who has, COVID-19 symptoms.

Under the policy, an employee should be required to:

  • inform his or her employer of illness-related symptoms through a confidential process;
  • self-isolate at home;
  • follow the advice of the relevant public health agency on treatment and recovery; and
  • keep the employer updated regularly.

Can employees be required to provide a doctor's note?

Most physicians in Ontario are not able to test for COVID-19 currently. Testing has been an ongoing challenge throughout Ontario.

In addition, provincial and federal health directives discourage us from attending a physician’s office, meaning physical examination is unlikely and, therefore, the quality of any examination may be unsatisfactory.

While employers are generally entitled to request a physician’s certificate or note if an employee is absent from work, such as on sick leave, doing so due to COVID-19 is impracticable.

If an employee is a confirmed case, or has been symptomatic, a physician could potentially opine on whether the employee continues to be symptomatic, but not likely be able to verify whether the employee is infection free.

Accordingly, while the employer may be entitled to request a doctor’s statement, it is likely to have compromised value.

Can employees be required to be tested before going to work?

COVID-19 in testing in Ontario is not widely available – it must be directed by a healthcare authority. It cannot be obtained on request of any person. 

For most of us, obtaining a test absent a directive to do so is unlikely.

Therefore, employers are not entitled to require testing before employees attend their work generally.

There may be exceptions to this for higher-risk workplaces, such as hospitals and long-term care facilities.

Similarly, if the employer has reasonable grounds to believe infection is present, such as symptoms being displayed, employees may be rightfully requested to leave their workplace and contact the local health unit, or other health authority, to determine if assessment and testing should be undertaken.

Can employees’ temperatures be taken before allowing them to attend work? Is thermal testing allowed?

A primary symptom of the virus is an elevated body temperature of above 38˚C (100.4˚F).

Touchless temperature scanners are available to employers to use, but can they?

This issue is unclear and controversial, including because an employee may have a temperature without having the virus.

On the other hand, thermal testing is non-invasive, generates fairly objective and instant results and tests for one of the primary symptoms of COVID-19.

So, employers may consider using thermal testing, but not randomly in the workplace, but rather only if they have reasonable grounds for suspecting an employee may be symptomatic.

Ideally, an employee would consent to a temperature screen in the workplace, further minimizing the risk of liability for a privacy violation.

To utilize thermal screening effectively and to minimize risk of privacy violation, employers should consider:

  1. if possible, retaining a third party to conduct the thermal screening;
  2. ensure any other employee engaging in the screening is duly and properly trained and qualified to use the touchless temperature scanner and is knowledgeable about COVID-19 symptoms and what other factors may influence screening results;
  3. providing the tester with personal protective equipment, including: surgical (latex) gloves, face masks, a lab or disposable coat and alcohol-based hand sanitizer in all workplace areas where testing is undertaken;
  4. asking employees who attend work if they are displaying any flu-or-cold-like symptoms, such as coughing, breathing trouble, fever, pink eye, etc., or otherwise feeling ill for any reason;
  5. asking employees if they have had any contact within the past fourteen days with any other person who is a confirmed, or suspected, case of COVID-19;
  6. asking the consent of employees before undertaking the thermal testing – if there are reasonable grounds for suspecting an employee may be infected, but the employee refuses conduct, the employee may be asked not to attend the workplace due to the risk of potential contamination of others;
  7. conducting the testing in a private area, beyond the observation and earshot of others; and
  8. not collecting, recording, storing, using or disclosing for any reasons the information collected other than solely for determining whether the employee should be permitted to enter the workplace.

If an employee Employees thermal tests at at or above 38˚C (100.4˚F), or the employers “yes” to any of the screening questions, the employee should be advised to leave the workplace and stay at home, self-isolate, contact their physician or the local health unit for further assessment and next steps and leave home only for essential reasons.

Thermal testing and screening questions are reasonable methods to protect a workplace from a potential outbreak of COVID-19.

Provided that employees consent to being tested, the test results are not recorded, and the tests are conducted safely and privately, liability for potential violation of privacy should be minimized, if not eliminated entirely.

 If any testing or screening is conducted, how should that information be handled?

There is no decisive, clear statutory privacy-related laws in Ontario regarding implementing and conducting thermal testing in workplaces.

Therefore, employers must adhere to “best practices” to avoid potential privacy violations at common law.

If thermal testing is utilized, the personal information obtained from the employee through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than solely determining whether the employee should be permitted to enter the workplace.

In addition, any personal information collected should be anonymized prior to recording, if recording is even required.

Any personal information collected should also be safeguarded against unauthorized use or disclosure.

The information collected should be limited as much as possible to fulfill the purpose of testing, and test records should not be collected, stored, used or disclosed for any purpose other than the screening context.

Ontario’s Human Rights Code Applies to all Workplace Screening and Testing:

Currently, Ontario’s Human Rights Commission indicates that medical assessments in the workplace to determine an employee’s ability and fitness to perform his or her employment duties may be permissible in these circumstances under Ontario’s Human Rights Code.

Despite this, personal information collected by medical tests may have an adverse impact on employees with other disabilities.

Therefore, employers should only obtain information from medical testing that is reasonably necessary in the circumstances to evaluate the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.

Based on this, touchless thermal scanning properly undertaken is unlikely to expose employers to tenable human rights and discrimination-related claims.

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BECAUSE OF AND DURING COVID-19, CAN EMPLOYERS LAY OFF OR FIRE EMPLOYEES WITHOUT HAVING TO PAY THE USUAL SEVERANCE? WHAT YOU NEED TO KNOW.

Many employers in the City of Kawartha Lakes, particularly those designated as “non-essential” have been forced to scale-down or cease operating, including by provincial emergency order. Even “essential” workplaces have been forced to lay off, place on infectious disease leave or terminate employees due to the pandemic. Uncertainty abounds for everyone, in terms of the legal rights of both employers and employees.   

The virus does not discriminate – it affects all marketplaces, both bricks-and-mortar businesses and those operating by e-commerce. 

For more information from us about whether to lay off, terminate or place an employee on a temporary leave of absence, go here: http://wardlegal.ca/31585663827849.

However, during this unprecedented uncertainty, the key question is whether employers are able to terminate an employee, including by failing to recall them after a temporary lay off, without paying the employee statutory minimum entitlements under Ontario’s Employment Standards Act, 2000 (the “ESA”), due to the so-called “frustration” of the employment agreement (i.e., due to the pandemic).

If an employment contract is “frustrated” (a legal concept), an employer is not required to give, or pay, notice of termination or pay in lieu of notice.

The ESA excuses an employer from giving, or paying, statutory termination pay for any employee, “whose contract has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance,” unless the “impossibility or frustration is the result of an illness or injury suffered by the employee”.

In addition, the ESA relieves an employer from paying statutory severance pay for any employee, “whose contract of employment has become impossible to perform or has been frustrated”, unless the impossibility or frustration is the result of: (a) a permanent discontinuance of all or part of the employer’s business because of a fortuitous or unforeseen event; (b) the employer’s death; (c) the employer’s death, if the employee received a notice of termination before his or her death; or (d) an illness or injury suffered by the employee. 

Historically, the Courts have interpreted these as catastrophic events causing an employer to shut down, or substantially scale down operations, such as fires, floods, natural disasters or so-called “Acts of God”.

It remains unclear in Ontario, however, whether businesses closing, or reducing employees due to scaled-down operations, due to the pandemic will be viewed by Courts and the Ontario Government as being caused by a “fortuitous or unforeseeable event or circumstance” making the employee’s job impossible to perform.

Beyond the ESA, generally if an employment contract does not contain a force majeure clause, or the clause is of no assistance because of its terms, an employer may, in very limited circumstances, also be able to argue that it is relieved from its contractual obligations by claiming the contract is “frustrated” at common law.

Legally, frustration occurs when an event, through no fault of either party, creates a new circumstance which has the effect of making the contract impossible to fulfill. In such situations, both parties are discharged from further performance of their obligations under the contract. The parties are relieved of their obligations because to force performance despite the new and changed circumstances would be to order the party to do something fundamentally different from what the parties originally bargained for.

The threshold required for frustration at common law is a very high one. In order to rely on it, a party must show that the original reason for entering into the transaction was completely destroyed by a supervening event.

Generally, as in the case of force majeure clauses, our Courts have not accepted economic disruption or falling markets to constitute an event that would frustrate a contract. Courts have generally held that changes to the circumstances must amount to an unforeseen event capable of triggering frustration at common law and that, even if there were, it would be incumbent on the employer to adduce real evidence in support thereof. Courts have also recognized that a business failure caused by cancellation of orders, insolvency, landlord eviction or loss of key personnel could result in an employer not being able to provide continued employment to employees in a workplace. However, generally speaking, these events are considered to be a part of the normal business cycle and cannot be construed as "unforeseen". A business failure for these reasons would not discharge an employer's obligation to provide individual compensation for length of service or group termination under the ESA or at common law, presumably. 

Arguably, employers may take the position that their employment agreements have been frustrated because COVID-19 rendered it impossible to perform due to:

• unforeseeable or unpreventable causes beyond the employer's control; or            

• a fortuitous or unforeseeable event or circumstance;              

• the temporary or indefinite termination of employ because of lack of work; or

• the actions of any government authority that directly affects the operations of the employer, like being designated as “non-essential” (but being permitted to operate by e-commerce, remotely, etc.).

These exceptions would, it appears, clearly be invoked by the COVID-19 pandemic generally and, if so, an employee may not be entitled to any severance. 

Logically, if the closure of a business, or reduction in work force, is directly related to COVID-19 and there is no other manner in which the employee could perform work in a different way, such as remotely, these exceptions may apply to exclude employees from receiving both statutory and common law-based compensation for length of service and group termination pay.

However, this may not always be the case.

If an employer terminates an employee for reasons that are not directly related to COVID-19, or if the employee’s work could still be done (albeit in a different way), these exemptions would not seemingly apply.

Each situation is very likely to be determined on a case-by-case basis. 

A business failure caused by cancellation of orders, insolvency, landlord eviction or loss of key personnel could result in an employer not being able to provide continued employment to employees in a workplace. These events are considered to be a part of the normal business cycle and cannot be construed as "unforeseen" generally. A business failure for these reasons would not discharge an employer's obligation to provide individual compensation for length of service or mass termination under the ESA. Similarly, business failure for reasons of cancellation of orders, insolvency, Therefore, the employer would not be relieved of the obligation to pay at least statutory termination and severance pay.

Temporary illness, injury or disability is not considered to be an unforeseeable event or circumstance that would discharge an employer’s obligations under the ESA, either. However, if medical evidence shows that an employee is permanently disabled as a result of COVID-19 and will never be able to return to the workplace, there may be frustration at common law, relieving the employer of paying beyond the statutory minimums. Employers must be mindful of their duty to accommodate under Ontario’s Human Rights Code, too.

Therefore, the key points:

  • each situation is likely to be judicially addressed on a case-by-case basis;  
  • it remains the responsibility of both the employee and employer to work together and be flexible to find ways for the employee to perform work in a different way, even if modified, such as working from home, which many employees are now doing;
  • the ESA sections referred to above relates only to statutory termination and severance pay, not any applicable common-law entitlement; and
  • the test is basically “impossible” to perform – a high threshold for employers to meet.

To terminate any employee, or fail to recall any employee after a temporary lay off, an employer would effectively have to prove that it was impossible to continue employing the employee, in any way or capacity, causing the parties’ relationship to be frustrated. 

Employers will need to prove, in each case, that the employee’s employ was impossible to maintain, or frustrated by, COVID-19 (which must be proved as a fortuitous and unforeseen event effecting each, specific employee), failing which the employee will be entitled to both statutory and common law notice entitlements.

 

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MORE HELP TO CKL EMPLOYERS ENROLLED IN WORKPLACE SAFETY AND INSURANCE - A FULL RELIEF PACKAGE FROM THE WSIB - WHAT YOU NEED TO KNOW.

To offer more assistance to CKL employers who are enrolled, the Workplace Safety and Insurance Board (“WSIB”) has now announced a "relief package", permitting employers to defer premium reporting and payments until August 31, 2020.

The WSIB has also announced that the costs for COVID-19 claims will be allocated on a Schedule-wide basis and, therefore, will not result in premium increases for 2020.

Schedule 1 employers are eligible to defer their reporting and payments until August 31, 2020. This applies to monthly payments due March 31, April 30, May 31, June 30, and July 31, 2020, to quarterly payments due April 30 and July 31, 2020, and to annual payments due April 30, 2020.

Schedule 2 employers—–including certain publicly funded organizations and certain businesses involved in federally regulated industries—are also eligible to defer reporting and payment obligations.

No interest will accrue and no penalties will be charged during the deferral period.

Notably, eligible employers are not required to opt-in to the deferral - it is automatic. For those employers electing not to participate, reports may still be submitted online and payments may can be made online or via mail.

The WSIB has also announced that there will be no change in premium rates for 2020, aimed at facilitating employees' ability to comply with public health orders, such as self-isolation or quarantine orders. This will not, however, change employers’ obligations under Ontario's Occupational Health and Safety Act.

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CKL RESIDENTS - URGENT/EMERGENCY FINANCIAL HELP AVAILABLE TO YOU - UP TO $730 MONTHLY; MORE WITH CHILDREN - HOW TO QUALIFY - APPLY ONLINE - WHAT YOU NEED TO KNOW

If you need urgent financial help and you live in the City of Kawartha Lakes, you could be eligible for approximately $733 for a month if you are a single person and need help paying for food and shelter.
More if you have children.
Up to 48 days of support is available depending on your specific situation
You may qualify if you are in a crisis or emergency situation, and do not have enough money for things like food and housing.
For example, a crisis or emergency includes situations where you:
- have been affected by COVID-19
- are being evicted from your home
- are in or are leaving an abusive relationship
- are worried about your safety
You are not eligible if you are getting assistance from Ontario Works or the Ontario Disability Support Program.
Apply for this help online here:
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FEDS SAID TODAY TO GO OUTSIDE ONLY IF "ABSOLUTELY ESSENTIAL" - IF SO, YOUR UPDATED PROTOCOL FOR GOING TO ANY ESSENTIAL STORE, INCLUDING YOUR NON-MEDICAL MASK

Today the federal government announced we should only leave home if it is "absolutely essential". If you cannot use a click-and-collect service to buy your essential goods, here is an updated protocol to follow when you go to an essential store, like groceries and pharmaceuticals: 

  1. follow the containment measures implemented by the essential service, including the waiting outside to enter, one-way arrows, standing on the taped distance lines, etc.;
  2. always engage in the ‘hockey stick’ rule (i.e., physical distancing of two metres; six feet), including with essential workers;
  3. only one family member should attend the essential service, not more;
  4. wear your non-medical (cloth) mask, primarily to protect others from you, if you may be asymptomatic;  
  5. only buy groceries, get gas, get your drugs, etc. no more than one per week; no social browsing or shopping – if possible, limit it to once bi-weekly;
  6. do not attend with your own bags or containers;
  7. minimize any chit-chat and social interaction with any other customers or essential service workers; no gathering; no idle talking;
  8. adhere to all COVID-19 containment measures, including coughing, if necessary, into your elbow, washing your hands thoroughly immediately before and after you attend the essential service;
  9. minimize your time in the essential service – prepare and take a list in advance; no browsing;
  10. importantly, do not vent to the essential workers – they are endangering themselves to help you; none should be exposed to ridicule, criticism, complaints or general frustration;
  11. thank every essential worker you see, if possible – just a quick, “Thank you for everything” – no need to engage in a discussion;
  12. if possible, consider providing a tip to an essential worker and, if so: a) strictly physically distance; and b) provide the cash tip in an envelope and lay it at the counter only; and
  13. be civil, respectful, polite, courteous and cordial to everyone, particularly the essential workers, as you would at any time before the onset of this pandemic.

 

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CKL RESIDENTS - MORE FINANCIAL HELP - CERB EXPANDED TODAY - SEASONAL;PART-TIME; REDUCED HOURS; STUDENTS - PLUS A WAGE HIKE TO ESSENTIAL WORKERS - MORE HELP ON THE WAY TO POST-SECONDARY STUDENTS AND CKL BUSINESSES THAT CANNOT PAY COMMERCIAL RENT

Today the federal Government announced more flexible rules for claiming the Canada emergency response benefit (the “CERB”), which previously excluded, for example, students and employees or self-employed people working reduced hours.

They also announced a wage boost for essential workers who make less than $2,500 a month, including those working in long-term care facilities for the elderly.

This applies to “a volunteer firefighter, or a contractor who can pick up some shifts, or you've got a part-time job in a grocery store”.

"We will do whatever we can to help you do your job and support you through this time."

Seasonal workers and those who have recently run out of employment insurance will now also be eligible for CERB.

People who make less than $1,000 a month due to reduced work hours will also qualify.

The CERB now has expanded eligibility criteria, and they will announce more relief soon about additional help for post-secondary students and businesses having trouble paying commercial rent.

The CERB is now focussing on the needs of seasonal workers, people who have exhausted EI benefits, students, owner-operators and those who continue to receive a modest income from part-time work, royalties and honorariums.

The changes are back-dated to March 15. 

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COVID-19: HIRE YOUTH IN THE CKL (15 TO 30), INCLUDING STUDENTS - 100% WAGE SUBSIDY NOW AVAILABLE - WHAT BUSINESSES AND NON-PROFITS NEED TO KNOW

To facilitate the employ of our youth in the City of Kawartha Lakes, those between 15 and 30, including students and summer students, the federal government has changed, temporarily at least, its Canada Summer Jobs program. 

Enhanced wage subsidies are now available for these potential employers:

  • not-for-profit organizations;
  • the public sector; and
  • private sector organizations with 50 or fewer full-time employees across Canada.

What You Need to Know:

  • wage subsidy for private and public sector employers has been increased - they are eligible to receive up to 100% of the minimum hourly wage for each employee (previously this was only available to not-for-profit employers);
  • the end date of employment has been extended from August 28, 2020 to February 28, 2021 to address delays to the start date of summer jobs caused by the pandemic;
  • employers have more flexibility to adapt their projects and job activities to support essential services;  
  • employers may hire on a part-time basis (less than 30 hours per week) (previously employers were required to provide full-time positions, between 30 to 40 hours per week);
  • other eligibility requirements remain unchanged, including the necessary time of employee, being between 6 and 16 weeks; and
  • placements can begin as of May 11, 2020.  

Although the call for Canada Summer Jobs applications for the 2020 season ended on February 28, 2020, the federal government has announced it is attempting to identify organizations providing essential services that could offer youth jobs, but did not previously apply for the program. 

The federal government also indicates that it will co-operatively work with employers to ensure that work options reflect public health requirements and advice related to COVID-19.

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I'M LAID OFF - DO I HAVE TO BE RECALLED? SHOULD I SUE MY EMPLOYER FOR WRONGFUL TERMINATION? CAN MY EMPLOYER DO THIS? EMPLOYERS AND EMPLOYEES IN THE CKL - WHAT YOU NEED TO KNOW ABOUT LAY OFFS DURING THE PANDEMIC

Due the shutdown of non-essential workplaces, effective March 24, 2020, many employers have laid off, or will continue to consider temporarily laying off employees, particularly if those employers do not qualify as “essential workplaces”.

This is not a risk-fee, easy-to-do step by an employer, despite the catastrophic circumstances.

JUDGE-MADE LAW IN ONTARIO – LAY OFF CAN BE A TERMINATION OF EMPLOY:

Generally, at least before the pandemic, Ontario employers had no free-standing right, statutorily or otherwise, to lay off employees.

Rather, an employee may be laid off only if such a right is:

  1. expressly or impliedly contemplated by the contract of employment; or
  2. expressly agreed to by the employee.

Employers who lay off employees contrary their employment contracts are liable to provide those employees with reasonable notice or pay in lieu, resulting in potentially costly litigation and severance obligations.

Similarly, employees who decline to consent to a layoff must be treated, and provided with notice, as though terminated without cause.

The refusal of an employee to accept the proposed layoff is not a sufficient basis to allege cause for termination.

Whether the or not right to lay off an employee is contemplated by an employment contract, and whether or not a temporary lay off is appropriate for your business, requires both legal and factual analysis.

However, given the emergency declarations by both the federal and provincial governments, including the ordered closure of non-essential businesses in Ontario, this existing law is now entirely uncertain.

These issues have yet to be addressed and resolved by our Ontario Courts, most of which are operating on skeletal resources currently.

Accordingly, the pandemic is very likely to force changes, at least temporarily, to the law regarding lay offs in Ontario, mostly because there cannot be a flood of wrongful termination claims inundating a system that will already be challenged by lack of resources and judicial catch-up.

STATUTORY LAY OFFS IN ONTARIO:

Despite the above, Ontario’s Employment Standards Act, 2000 (the “ESA”) allows employers to invoke a temporary layoff, which does not amount to a termination or severance of employment.

Temporary Lay Off – Defined:

A temporary lay off is:

1. a layoff of not more than 13 weeks, in any period of 20 consecutive weeks;

2. a layoff of more than 13 weeks, in any period of 20 consecutive weeks, if the layoff is less than 35 weeks in any period of 52 consecutive weeks and:

  • the employee continues to receive substantial payments from the employer;
  • the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan;
  • the employee receives supplementary unemployment benefits;
  • the employee is employed elsewhere during the layoff and would be entitled to receive supplementary unemployment benefits if that were not so;
  • the employer recalls the employee within the time approved by the Director of Employment Standards;
  • in the case of an employee who is not represented by a union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

3. in the case of an employee represented by a union, a layoff longer than a layoff described in clause 2 above, where the employer recalls the employee within the time set out in an agreement between the employer and the union (i.e., recall rights in a collective agreement).

Any employers who temporarily lays an employee off, without specifying a recall date, is deemed not to have terminated the employ of the employee, unless the period of the layoff exceeds that of a temporary layoff.

So, if a layoff exceeds this period above, an employee will be deemed to have been terminated and, therefore, will be entitled to ESA termination pay and severance pay, if applicable.

In addition to providing pay in lieu of notice when a layoff exceeds the period in which it is considered temporary, employers in Ontario must provide employees who have more than five years of service with statutory severance pay when the layoff exceeds 35 weeks in a 52 week period. Similarly, federally regulated employers are required to pay statutory severance pay when a layoff exceeds certain timeframes.

Employers are not required to provide employees with notice in advance of a temporary layoff, but unionized employers may be subject to notice requirements under their collective agreements, which may create significant difficulty due to the Ontario Government’s reasonably unexpected order.

In a unionized workplace, there may also be layoff and recall procedures that must be followed.

In addition, if the layoff of a unionized employee extends beyond 34 weeks (i.e. lasts for 35 weeks or more) and the employer and the union have an agreement that requires a recall period of 35 weeks or more, the employee may elect to take statutory termination pay and severance pay, if applicable, or retain their recall rights, but not both.

Mass Layoffs:

The notice/pay in lieu of notice to which employees are entitled increases significantly when a layoff is considered a mass layoff. Layoffs are considered to be mass layoffs when:

  • more than 10 employees are impacted within certain periods of time in New Brunswick, Newfoundland and Labrador, Nova Scotia and Saskatchewan; and
  • more than 50 employees are impacted within certain periods of time in Alberta, BC, Manitoba and Ontario.

In addition, employers in many provinces must provide notice, sometimes in a specific form, to the government. The same applies for federally regulated employers.

Exceptions:

If the lay off exceeds the required temporary period, there are also exceptions to an employer’s obligation to provide notice/pay in lieu of notice, including severance pay, if applicable, under the ESA, such as:

• when the employment contract is impossible to perform due to:                      

• unforeseeable or unpreventable causes beyond the employee's control; or            

• a fortuitous or unforeseeable event or circumstance;                   

• the temporary or indefinite termination of employment because of lack of work; or

• the actions of any government authority that directly affects the operations of the employer.

These exceptions would, it appears, clearly be invoked by the COVID-19 pandemic and, if so, an employee may not be entitled to any statutory pay. 

When employees are temporarily laid off, employers should issue Records of Employment, so the employees may apply for Employment Insurance (“EI”) benefits, if they qualify.

SO WHAT NOW?

Historically, even thought the ESA permits lay offs, if there is no term in an employment agreement (express or implied) permitting temporary layoffs (or in some cases an established practice relating to temporary layoffs), a layoff, even if intended to be temporary, may result in the risk of constructive dismissal claims. In other words, even if a temporary layoff under the ESA is carried out properly, such that employment is not deemed terminated under the ESA, if there is no agreement to the contrary and/or a well established practice, a unilateral layoff by an employer may result in triggering a termination of employ, pursuant to Ontario’s common law (i.e., Judge-made law).

However, COVID-19 is unprecedented. As a result, it is doubtful that the traditional legal approach would prevail, if an employee were to sue due to being temporarily laid off. Arguably there is an implied term in every employment relationship that a temporary lay off would be permissible in these catastrophic circumstances, particularly if an employer has been ordered shut down by the Government.

In addition, the virus and its extraordinary implications may create an argument that an employment relationship has been frustrated, unable to be performed due to circumstances beyond the parties’ control or management. Frustration is a legal principle providing that an unforeseen change to the circumstances underlying the contract, through no fault of the parties, renders the contract incapable of performance.

Moreover, a constructive dismissal claim may arise where there has been a unilateral change by the employer, which substantially alters an essential term of the parties’ employment contract, verbal or in writing. Therefore, if a change to the terms and conditions of employment are not imposed by the employer, but are rather imposed as a result of a mandatory closure ordered by the Ontario Government, it is very questionable in these extraordinary circumstances whether an employee would be able to successfully argue that the temporary layoff constitutes a constructive dismissal. An employee claiming constructive dismissal also has an obligation to mitigate any damages they allege to have suffered, which means that if a laid off employee is recalled to work and declines, a Court may subsequently determine that the employee failed to mitigate his or her damages, reducing the amount awarded for the termination.

Some employers, if financially able to do so, should consider continuing benefits and/or providing supplementary unemployment benefits to qualify for the longer temporary layoff period under the ESA.

Finally, employees are also entitled to a job-protected, unpaid leave of absence if the employee will not be performing the duties of his or her position due to emergency declared under Ontario’s Emergency Management and Civil Protection Act (“EMCPA”). Employees may also qualify for infectious disease leave of absence, too, being a job-protected, unpaid leave of absence as well, for which EI benefits are also available.

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HEALTH AND SAFETY OF EMPLOYEES WORKING AT HOME - TIPS TO EMPLOYERS IN THE CKL TO AVOID LIABILITY AND LAWSUITS DURING AND AFTER THE PANDEMIC

What are the employer’s obligations to an employee when an employee is not working in the office? With so many employees now working from home, employers’ health and safety obligations need to be considered. 

ONTARIO HEATH AND SAFETY LEGISLATION DOES NOT APPLY TO WORKING AT HOME:

The health and safety of employees is largely governed by Ontario’s Occupational Health and Safety Act (the “Act”).

However, for employees working at home, or remotely, as it stands, the Act does not apply to those circumstances. 

Sub-section 3(1) the Act provides that it “does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.”

Employers cannot reasonably be expected to attend an employee’s home and evaluate risks, nor be expected to assume liability for the safety of their employees in their own home environments, over which the employer has no control. 

However, there may still be risks in an employee’s home, which ordinarily would be covered by the Act – both employees and employers should discuss potential safety issues for the working-at-home arrangements, even if employers are not statutorily required to do so. 

Despite this, due to the pandemic, it is entirely unclear if this legal position will be applied in future.

WORKPLACE VIOLENCE AND HARASSMENT:

The Act addresses directly workplace violence and harassment, including requiring employers to mandatorily have an adequate workplace policy.

These protections should still apply to employees working at home, sensibly.  

Employees may still be expected to interact with co-workers, customers and clients, for example, including virtually. While there may be less risk of physical contact while remote working takes place, there remains the risk of other forms of violence or harassment, which is prohibited in the workplace by the Act. There need not be a physical office interaction for violence or harassment to be experienced.  

Employers should consider how to ensure safe working conditions for their employees who are working at home. While employers obviously are not going to be doing home visits to make sure there are no cords to trip on or boxes about to fall on anyone’s head, they can do things like ensure that workers are being adequately supervised, even when working remotely. A clear and reasonable remote working policy can take an employer a long way. 

Effectively, there is simply a lack of caselaw decisions on this point and no clear direction on whether the Act will apply to working at home, or not, particularly during this pandemic and the unprecedented circumstances it brings.

TIPS TO EMPLOYERS TO MINIMIZE THE RISK OF LIABILITY AND LAWSUITS DURING AND AFTER THE PANDEMIC:

Therefore, employers are well-advised to carefully consider these issues during the pandemic, or at any other time, particularly for work-at-home arrangements with remote employees:

[1]      Health and Safety:

  • the employer’s obligations under the Act in terms of health and safety and its responsibility to take preventive measures continue during this period of telework; and
  • the potential that the workplace could be considered to include an employee’s home must be considered, including the employee’s workstation set up and ergonomics.

[2]     Mental Health, Psychological and Sexual and Other Violence and Harassment:

  • employers must strive to promote and preserve civility and courteous conduct, especially while using new methods of communication, like virtual teleconferencing, etc.;
  • employers should provide etiquette guidelines for virtual communication between co-workers and customers;
  • employers must discourage misconduct or failure to engage in proper teamwork – new technology does not alter this important objective;
  • employers have a legal responsibility to prevent and address psychological, sexual and other harassment situations;
  • employers may be responsible for events that occur outside the usual workplace, but relate to work;
  • employers should adopt a formal working-at-home policy, clearly setting out the expectations; and
  • employers should review their complaint and inquiry procedures, to ensure they may be adequately processed outside of the workplace, too. 

[3]      Employment Standards Act, 2000:

Employers must also be mindful of their statutory obligations and minimum labour standards, which apply to those working at home, too, including:

  • modifying work schedules;
  • managing overtime; and
  • addressing costs associated with working from home.

[4]      Privacy and Confidentiality:

It is critical for employers to consider and manage effectively the privacy and confidentiality of work-related information, including:

  • to accommodate properly the contractual performance of work in the employee's home;
  • for transporting and storing work documents; and
  • establishing work spaces at home to ensure that information/documents are kept confidential and ethical obligations are respected and adhered to strictly.

Caselaw References:

Decision No 2249/16, 2016 ONWSIAT 2410

Watkins v. The Health and Safety Association for Government Services, 2013 CanLII (ON LRB)

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COVID-19 IN THE CKL - AN UPDATE ON PENALTIES FOR FAILING TO COMPLY WITH CONTAINMENT MEASURES - NEW FINES, ETC.

An update on enforcement measures available in the City of Kawartha Lakes to require COVID-19 containment: 

FEDERAL GOVERNMENT:

  • for failure to quarantine for 14 days after returning to Canada, a fine of up to $750,000 and imprisonment up to six months;   
  • for causing risk of imminent death or serious bodily harm to another, while defying the federal Quarantine Act, a fine of up to 1 million dollars and jail for up to three years, or both; and
  • federal Criminal Code remains available, including bodily harm provisions.  

ONTARIO EMERGENCY ORDERS:

Any person who fails to comply with a provincial emergency order (i.e., gatherings of more than five, non-essential businesses cannot be open to public, etc.) may face:

  • for an individual, a fine of up to $100,000 and imprisonment up to one year
  • for an individual who is a director/officer of a company, a fine of up to $500,000 and imprisonment up to one year; and
  • for a company, a fine of up to ten million dollars.

For a list of all emergency orders by Ontario to date, go here: https://www.ontario.ca/page/emergency-information

THE MUNICIPALITY (CKL):

  • unlike other municipalities, the CKL has not enacted a by-law prohibiting contact with others (non-household members) within the 2 metre distance;  
  • has prohibited the use of amenities on municipal property and required pass-through use only;  
  • has not made any state of emergency orders regarding enforcement of containment measures or conduct of business;
  • CKL has not directed cottagers and seasonal residence owners to stay home and refrain from travelling to the CKL; and   
  • OPP and KL Police Service may enforce federal and provincial emergency orders (no gathering of five or more, etc.) and the federal Criminal Code   

HKPRD HEALTH UNIT:

  • Class Section 22” issued, effective Apr. 14, 2020 at 12 p.m. (per Ontario’s Health Protection and Promotion Act)
  • self-isolation for a minimum 14 days is mandatory for any person in the CKL who:
  1. has been diagnosed;
  2. is considered a probable case; and/or
  3. has had contact with a confirmed case
  • self-isolation requires not leaving your home for any reason, including to obtain essential goods or services; no visitors except as approved by the Health Unit; and
  • Health Unit cannot issue fines directly, but can request the Ontario Court of Justice to issue a fine of up to $5,000 per day.  

Note: Physical distancing and wearing a mask in public are not legally required at any level of government.  

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COVID-19 - SPOUSES - IF YOU SEPARATE RECENTLY BEFORE OR DURING THE PANDEMIC, BE CAREFUL! YOU MAY NOT HAVE TO PAY AS MUCH TO SETTLE PROPERTY - WHAT YOU NEED TO KNOW

When two married spouses separate, among other issues they must resolve, they must “equalize” their “net family property”, respectively.

Basically, the spouse whose net worth increased more between the date of marriage and the date of separation must pay to the other spouse one-half of the difference in that increase over the other spouse, subject to a few rules and exceptions that often cause disputes in and of themselves.

If Sharon’s net worth increased by $10 during the marriage, but Mike’s, her married spouse’s, net worth only increased by $5, Sharon would legally be required to pay to Mike $2.50, thereby equalizing their net family properties.

Of course, it is more complicated than this, as special rules and exemptions also apply, but this is the basic family law requirement, unlike in most of the United States, where a married spouse is entitled to half of the combined assets and liabilities, generally.

COVID-19 now casts an uncertain shadow over this family law rule.

Assets have already substantially lost value during the pandemic, particularly investment holdings and likely the value of matrimonial homes, farms, etc.

The key dates are the date of marriage and the date of separation (referred to as the “valuation day”).

So, if the date of separation was early on during, or even before, the pandemic affected Ontario, there is substantial risk involved with utilizing the date of separation fair market value for assets to compute the equalization of net family properties.

It may create unfairness to the higher net worth spouse, forced to solely burden the economic impact of the virus, particularly if a settlement or trial does not take place for several months after the pandemic struck us.

If an asset is jointly-owned, the issue is less likely to arise, as both spouses typically, subject to a few exemptions, bear the prevailing market conditions post-separation. 

Furthermore, there is so much uncertainty about the future of the economy and market forces, the risk may actually be increasing as time passes during the pandemic.

A higher net worth spouse in these circumstances does, at law, have a remedy to assert to try to gain some relief.

Under the legislation for Ontario, the Court is empowered, subject to strict conditions, to reduce or vary an equalization payment by the higher net worth spouse to the other.

This is commonly referred to as an “unequal division” of net family properties. 

The relevant section of Ontario’s Family Law Act reads:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

The test to be given an unequal division by the Family Court is high and onerous. 

Essentially, applying the regular and usual family law must, in the special circumstances, be shocking and unconscionable to the Court.

The question is: does COVID-19 fall into that high threshold potentially?

Certainly the 2008 recession was considered by the Court to justify deviating from the otherwise normally-applied family law for equalization of net family property.

It seems, then, that COVID-19 would also be proper grounds to request an unequal division, in the right circumstances. 

Indeed, a spouse’s net worth may be substantially impacted by the pandemic between the date of separation and the time when the Court holds a trial, or there is a settlement reached.

What to do?

If a spouse has experienced a material decline in his or her net worth since the onset of the pandemic, before or after a separation date, careful consideration needs to be given to possibly seeking an adjustment to how the law would otherwise, normally be applied by the Court.

It may be that, due to the virus, there are justifiable reasons to assert that the high test has been met to warrant a lesser property settlement payment than would otherwise be required.

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COVID-19: YOUR UPDATED CHEAT SHEET FOR THE 75% AND 10% WAGE SUBSIDIES TO KEEP OR HIRE BACK EMPLOYEES IN THE CKL - WHAT YOU NEED TO KNOW

Update to the CKL – the Canada Emergency Wage Subsidy, per Bill C-14, the COVID-19 Emergency Response Act, No. 2, passed April 11, 2020:

NEW SOURCE DEDUCTION/REMITTANCE REFUND:

  • a new 100% refund for certain employer-paid contributions to Employment Insurance and the Canada Pension Plan, covering 100% of employer-paid contributions for eligible employees for each week in which the eligible employer receives the 75% CEWS - employers are required to continue to collect and remit employer and employee contributions to each program, as usual; and
  • employers may apply for the new refund at the same time that they apply for the 75% CEWS.

NOT-FOR-PROFITS AND CHARITIES:

  • not-for-profits may include membership fees; and
  • not-for-profits and charities may include or exclude (by election) revenue from government funding – whatever decision is made will continue to apply for the entire 75% CEWS period.  

CALCULATION OF “ELIGIBLE REMUNERATION” AND THE SUBSIDY:

  • subsidy is 75% of the amount of “eligible remuneration” paid to an employee;
  • a maximum benefit of $847 per week per employee;  
  • applies to individual employee salaries up to $58,700 annually;
  • no cap on the total subsidy an employer may claim;  
  • subsidy is taxable to the employer at year end (as “government assistance”);   
  • “eligible remuneration” includes salary, wages and other remuneration, like taxable benefits paid to an eligible employee, but does not include severance pay or stock options benefits, etc.; and  
  • no guidance on whether commissions, bonuses and pay incentive plans may be included.  

GENERAL:

  • system expected to be operational in May, 2020;
  • employers now able to apply for the CEWS through the Canada Revenue Agency's My Business Account portal here: https://www.canada.ca/en/revenue-agency/services/e-services/e-services-businesses/business-account.html;
  • reportedly the funding will flow within two to five weeks;  
  • more details about the application process are forthcoming;
  • what you select for your comparative calculation will apply for the full CEWS period (i.e., current month or the same month in 2019 OR the average in Jan. and Feb. 2020);
  • if you apply and are later held to be ineligible for the 75% CEWS, you will be required to repay the subsidy, plus an additional 25% penalty - penalties for fraudulent claims are severe and may also include additional fines and possible imprisonment; and
  • Note: to calculate your revenues for the 75% CEWS, you may use either the ‘cash accounting’ method (i.e., when payments are actually received by you) or the “accrual accounting” method (i.e., when you issue an invoice), which may offer more flexibility for your qualification application – whatever you elect, you must continue with that approach for the duration of the program.
  •  
  • APPLICATION FOR THE 75% CEWS:
  • entitlement to the subsidy will be based entirely on the salary or wages actually paid to employees - employers will need to pay the salary or wages to their employees, and, if eligible, will be repaid for those salaries or wages by the government through this subsidy program;
  • eligible employers will be able to access the subsidy by applying through the Canada Revenue Agency (CRA) My Business Account portal as well as a web-based application expected to be available in the next three to six weeks;
  • employers will need to keep records demonstrating their reduction in arm's-length revenues and remuneration paid to employees;
  • the government has indicated that funds will be available in approximately three to six weeks - for those employers not currently signed up for direct deposit, it will be beneficial to sign up for quicker access to funds through this program;
  • all employers will be expected to make best efforts to top up salaries to pre-crisis levels;
  • the government will consider implementing an approach to limit duplication between the two programs (CEWS and the CERB) in order to encourage all eligible employers to quickly rehire employees - according to the government, this could include a process to allow individuals rehired by their employer during the same eligibility period to cancel their CERB claim and repay the CERB payment for the relevant period;
  • if you have claimed the 10% Temporary Wage Subsidy before claiming the 75% CEWS, you will be required to reduce the latter claim by the amount previously received; and
  • municipalities do not qualify.  

THE 10% TEMPORARY WAGE SUBSIDY:

The 10% Temporary Wage Subsidy remains (“TWS”) available to employers:

  • employers who do not qualify for the CEWS may still qualify for the TWS;
  • no revenue threshold;  
  • maximum cap available to businesses; and  
  • application for the subsidy is not required (unlike the 75% CEWS).
  • the subsidy is equal to 10% of remuneration paid during the eligible period, up to a maximum subsidy of $1,375 per employee and $25,000 per employer in total (i.e., all employees, full period of eligibility);
  • the eligible period is March 18, 2020 to June 19, 2020, inclusive;
  • eligible employers may reduce the amount of payroll deductions required to be remitted to the CRA;  
  • can be accessed as soon as April 15, for quarterly and regular (monthly) payroll remitters;
  • eligible businesses must have had an existing business number and payroll account with the CRA on March 18, 2020 – a new corporation cannot be established, nor can an existing corporation apply for a payroll account after March 18, 2020 to take advantage of this subsidy;
  • example: the March subsidy can be calculated for your payroll remittances due on April 15 or, alternatively, you can defer your claim to a lump sum amount later on or year end for the specific eligibility period only – if so, the Canadian Revenue Agency will pay that amount to you or, alternatively, transfer it to you as a source deduction/remittance credit; and
  • municipalities do not qualify.

More information about the CEWS is here: https://www.canada.ca/en/department-finance/economic-response-plan/wage-subsidy.html

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COVID-19 - DO FULL CHILD AND SPOUSAL SUPPORT PAYMENTS CONTINUE? EVEN FOR NON-ESSENTIAL WORKERS? WHAT YOU NEED TO KNOW.

If your workplace has been ordered by emergency order to be shut down, or you have otherwise been unable to continue to work due to COVID-19, consideration should be given to ongoing child and spousal support obligations.

If a support payor is collecting the new CERB, the Family Responsibility Office cannot garnish that benefit, being $2,000 monthly taxable for currently a three-month period, to pay either child or spousal support.

In Ontario, loss of employ or income reduction involuntarily may invoke the ability for the support payor to request reduced support payments, depending on the circumstances.

Undoubtedly COVID-19 and the fallout, including the emergency orders, would qualify as a reasonably unforeseen event capable of triggering a review of the existing support arrangements.

Indeed, and despite that ostensibly we remain in the early days of the pandemic, the 2008 recession was accepted by the Ontario Courts as such an event, so it stands to reason the coronavirus would fall into the same category.

At law, an existing child support obligation may be varied in the event of a, “change of circumstances” since the child support order was made.

Likewise, a spousal support order may be changed in the event a, “change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order.”

While the law has yet to tackle COVID-19 in this context, it seems relatively straightforward that the pandemic would, at least on a prima facie basis, adequately support a request to vary a child or spousal support payment.

What should you do, as either the payor or recipient of either child or spousal support?

Firstly, review your Court order or your separation agreement.

Check for any clause in the document, usually in the support-related part of the document, that refers to a “material change in circumstances”, or language comparable.

If that clause exists, it may give the support payor legal ability to request a variation of the existing support payments.

Be watchful, in your Order or agreement, for any other clause that may require the existing support arrangements to continue unless they are varied by an order of the Court, or an arbitrator.

If that clause exists, it is likely the case that the support payor may be required to continue payment temporarily, while seeking to vary the existing arrangements.

In any event, the Family Court is largely only operating with skeletal resources and is mostly only entertaining emergency or urgent matters generally. While the Family Court is gradually expanding its services during the pandemic, it remains strained.

As a result, the Family Court is very unlikely to be receptive to a slew of urgent motions regarding the payment of existing child and/or spousal support, unless it qualifies for urgency and the test applied by the Court.

Accordingly, it is very important for both the support payor and the recipient to review their existing Order, or agreement, to know the framework they agreed to initially and what, if any, clauses may apply in the circumstances.

It is usually always better for two former partners to agree on a resolution, at least temporarily, rather than escalating the matter to the Family Court, which is, of course, very expensive and, at least for now, delayed in its process. 

If a support payor is a non-essential worker, or otherwise not working due to the virus, he or she should take reasonable steps to try to replace that income, including by applying for federal government-related benefits, such as the CERB or, if available, the Ontario government’s Emergency Assistance program, which is administered by most municipalities. Any steps taken should be recorded fully, as they may need to be used as evidence in future.   

 

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COVID-19 - ESSENTIAL WORKERS (AND OTHERS) ARE FEELING STRESSED AND ANXIOUS - STILL, WEED AT WORK IS NOT PERMITTED, UNLESS MEDICALLY JUSTIFIED - WHAT YOU NEED TO KNOW

Many are stressed and anxious during the pandemic. 

Still, the law on cannabis at work remains unchanged. 

Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.

The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.

Essentially, using pot recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:

· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;

· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;

· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and

· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.

Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical cannabis creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical cannabis, particularly if would cause undue hardship to the employer.

So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.

If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during break time and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.

Need an effective workplace policy for smoking, vaping and cannabis use?

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NEW ONTARIO EMERGENCY ORDERS NOW IN EFFECT IN THE CKL - A QUICK SUMMARY

The Ontario government has announced new emergency orders impacting the City of Kawartha Lakes:

April 9 – Construction - regulation amended regarding the closure of non-essential workplaces to permit the operation of certain construction workplaces for projects which are due to be completed before October 4, 2020 and that would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;

April 10 – Child Care - temporary order issued preventing child care centres from collecting payments from parents while care is not being provided, and protecting parents' child care spaces – the announcement reminded child care providers that they can seek government financial support to assist their business;

April 11 – Emergency Declaration - extended all previously issued emergency orders under the Emergency Management and Civil Protection Act - those orders have been extended to April 23, 2020 and include the orders respecting the closure of non-essential workplaces;

Additional Orders - The government has also announced new and additional orders by press releases:

  • regarding temporary health or residential facilities, which the government announcement indicates will "[make] it easier to repurpose existing buildings and put up temporary structures, like tents, so communities can meet their local needs quickly. This will reduce pressure on health care facilities, where needed, and help shelters provide more space for sleeping to maintain the physical distancing requirements to reduce the spread of the virus";
  • allowing hospitals and retirement homes to enter into agreements which will "[temporarily enable] hospitals to increase their capacity by using the beds and services of retirement homes without certain labour relations implications during the declared provincial emergency"; and
  • effective April 16, 2020, to "[support] construction workers and businesses with emergency action to help improve cash flow in the construction industry during the COVID-19 outbreak. This will lift the suspension of limitation periods and procedural time periods under the Construction Act and allow the release of holdback payments to contractors and subcontractors."

On April 12, 2020, the government also announced that it is, together with the Ontario Privacy Commissioner, developing a new health data platform called the Pandemic Threat Response (PANTHR).  According to the government press release, PANTHR will "hold secure health data that will allow researchers to better support health system planning and responsiveness."

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COVID-19 - BUSINESS FORCED TO CLOSE? CANNOT OPERATE? CAN'T PAY RENT? WHAT CAN THE LANDLORD DO? WHAT ARE COMMERCIAL TENANTS' RIGHTS? Q & A FOR COMMERCIAL LANDLORDS AND TENANTS IN THE CKL

Commercial tenancy relationships in Ontario are governed by Ontario’s Commercial Tenancies Act (the “CTA”) and the lease agreement itself.

They are largely a matter of contract, in terms of rights and obligations, rather than statutory rules.

Non-essential workplaces have been ordered closed by emergency order.

Other workplaces have been forced to discontinue operations, in whole or in part, due to the pandemic.

Governments and industry leaders are encouraging landlords to be flexible and work with their commercial tenants to find practical solutions to bridge the gap through this difficult time.

Some may not choose to do so.

WHAT CAN A COMMERCIAL LANDLORD DO?

In Ontario, if commercial rent is not paid under the terms of the lease, and subject to the terms of the lease, a commercial owner/landlord could:

(a) affirm the lease and sue for rent or for performance of an obligation (not available when rent distress is in progress) and commence an action in the Superior Court of Justice;

(b) affirm the lease and re-enter and re-let the commercial premises (only if the landlord has reserved a right of re-entry in the lease or has received a court order to the same effect);

(c) affirm the lease and exercise rent distress rights (seizure of property assets); or

(d) accept the repudiation of the lease, terminate and re-enter, and sue for the rent that would otherwise have been payable for the balance of the lease term.

WHAT LIMITATIONS ON LANDLORD’S TERMINATION AND LAWSUIT STEPS NOW APPLY DUE TO THE PANDEMIC?

Due to the pandemic, the owner’s ability to terminate, re-enter and sue for damages is currently hindered. 

Ontario has ordered that the Landlord and Tenant Board (“LTB”) may neither consider nor issue eviction orders in relation to residential tenancies and that sheriffs must postpone all scheduled eviction enforcements until further notice.

However, commercial tenancies are subject to the CTA, not governed by the LTB. Therefore, disputes about commercial tenancies are determined by the Superior Court of Justice.

The CTA provides that a commercial landlord may repossess a leased premises fifteen days after the tenant fails to both: (a) pay rent; and (b) remedy the failure in the interim. Notably, repossession by reason of the tenant’s non-payment of rent does not require judicial intervention or approval. However, it is usually recommended that such steps by a commercial landlord be sanctioned by the Court, ideally in advance. The resolution of all other disputes is in the Superior Court of Justice of Ontario (“ONSC”), rather than the LTB.

Moreover, the Superior Court currently limits operations to only urgent matters and, therefore, the ability for commercial landlords to effect lease terminations will be greatly constrained legally, practically and by reason of public policy considerations and perceptions.

Urgent matters” are defined by the Superior Court of Justice as:

  • urgent and time-sensitive motions and applications in civil matters, where immediate and significant financial repercussions may result if there is no judicial hearing; and
  • outstanding warrants issued in relation to Small Claims Court or Superior Court civil proceedings.

If a commercial landlord’s proceeding does not qualify, it is likely to be adjourned.

Even if an action could be brought in the Superior Court, enabling the landlord could obtain an order for possession of the premises, the Sheriff has been instructed not to enforce the order until further notice.

LIMITATION PERIODS ARE SUSPENDED:

By an Order in Council, under sub-section 7.1 of Ontario’s Emergency Management and Civil Protection Act, limitation and procedural time periods are suspended in Ontario for the duration of this emergency. The suspension is retroactive to March 16, 2020. Therefore, for potential claims by commercial landlords that have already arisen, but for which the limitation period has not expired, and for claims that may arise after March 16, 2020, the limitation period is suspended until further notice.  

STEPS TO TAKE IF YOU ARE A COMMERCIAL TENANT:

[1]      Review your lease:

Firstly, carefully review your lease agreement and check for:

[a] dates to meet an obligation, such as rent due date, completion of landlords’ or tenants’ work, expiry dates, damage and destruction time periods;

[b]  any clause obligating you to stay open for business, given the Ontario government issued an order to close all non-essential businesses – you may be forced to close, or the landlord may have to close its building; and

[c] any clause requiring you to comply with all laws – with orders and legislation being issued by all levels of government, you and the landlord need to be aware of the ongoing changes, respectively.

[2]      Review your lease for any “Force Majeure”/Unavoidable Delay Clause:

A “force majeure” event is an unforeseeable circumstance that prevents a person from performing an otherwise valid agreement or contract. If a person is unable to perform his or her contractual obligation due to unforeseen events, beyond his or her control, a force majeure clause may be triggered to validate the non-performance. Force majeure clauses can suspend the timeliness of obligations and are a matter of negotiation.

It is important to review your lease for timelines and deadlines that are, or will be, affected by the pandemic.

Most commercial leases contain a force majeure clause. Generally, the clause will provide that if any of the described events occur, which significantly affects a tenant’s ability to perform the lease obligations, the tenant will not be required to perform the obligation, either for as long as the event continues or permanently. However, in commercial leases, this virtually always excludes the payment of rent and the surrender date from the suspension.

Force majeure clauses are narrowly interpreted, which means the words used to identify the triggering event are narrowly construed. To be relied upon successfully, a force majeure clause must both: (a) be in the lease itself; and (b) expressly describe the event causing the inability to perform, or the delay in performance. If there is no express force majeure clause, it will not be implied into the agreement by the Court.

For an event to be considered a force majeure event, it must: (a) be unforeseen; (b) render performance of the obligation “impossible” (not merely more costly or difficult, unless cost or difficulty are expressly referenced); and (c) be the actual and direct cause of your inability to meet your obligation, as distinct from merely being incidental.

Note that many force majeure clauses require a tenant or landlord to give notice to the other and other affected parties that the “event” is, or will, result in a failure to meet one or more obligations under the agreement. For example, maintenance and repair obligations. Such notice allows the other party or parties to take steps to mitigate, if possible. There may be specific requirements for the notice in the lease agreement. A party failing to perform a contract must also consider what, if any, steps are available to mitigate the damages that may be caused due to the non-performance.

For more information from us about force majeure, go here: http://wardlegal.ca/the-virus---does-it-cancel-contracts-rental-agreements-separation-and-parenting-agreements-maybe---read-on

[3]      Review your lease for Health Emergency” Clauses and Operation of Building and Control of Common Areas:

“Health emergency” clauses allow a landlord to limit or control access to the building, if required or recommended by the authorities. Similar to a force majeure clause, a health emergency clause provides that where there is a triggering event (which is typically described with a non-exhaustive list of “epidemic”, “pandemic”, “disease”, “contagion”, etc.), the landlord will have increased control over the common areas and will be permitted to create new rules and regulations regarding the operation of the building.

These clauses may permit a landlord to close the building (or parts of the building), control the individuals who are permitted to access the building and permit a landlord to draft and deliver a set of health related regulations which the tenant and its employees and invitees must follow.

These clauses may also provide for how additional services for the building are to be paid. we are seeing increased cleaning services by virtually all landlords or property managers that have responded to the pandemic. The cost of these cleaning services may already be passed on to tenants through additional rent or operating cost provisions; however, if they are not, a health emergency clause may permit the landlord to charge back these costs to the tenants.

Finally, these provisions may have a force majeure element in that, if the health emergency exists, the landlord will not be in default if it does not comply with its maintenance and repair obligations until after the health emergency.

[4]      Business Interruption (and other available) insurance:

Speak to your insurance broker about your commercial policy and the availability of business interruption (or other available) insurance coverage.

Currently most insurers are denying this coverage, but there is already a class action commenced in Ontario claiming damages for the denial against many insurers.

For more information from us about business interruption coverage, go here: http://wardlegal.ca/31585663827877

There may be other potential coverage under your tenant’s policy, such as:

1.Civil Authority Insurance - covers losses arising from a government order preventing access to the insured property. Of course, for this coverage to come into effect there must be a governmental order. Neither governmental recommendations, nor private party decisions (i.e. closing office space), will meet this threshold. However, they can be addressed in a force majeure clause; and

2.Liability Insurancecovers losses arising from “third-party” claims. In the insurance context, a “third-party” is anyone not insured under the policy and could include the landlord or the tenant. It is unclear whether any liability will arise from third-parties contracting COVID-19 from or while on an occupier’s premises. However, these policies will come into effect for defending such claims as they arise.

In addition to business interruption insurance coverage, some insurance policies may also include sufficiently broadly-worded ‘loss of attraction’ or even ‘pollution’ provisions (mostly applying only to industrial businesses), which could also potentially trigger insurance coverage and, if so, financial assistance with paying rent and utilities during the pandemic.

[5]      Consider the doctrine of frustration of contract:

If there is no force majeure clause in the lease, a party is not necessarily without a remedy for an unforeseen event that causes a party to be unable to perform its obligations under the lease.

The doctrine of frustration provides that where the occurrence of an event results in a contract becoming fundamentally different in character from what the parties originally intended, the contract may be terminated without liability. However, a higher threshold must be met for the doctrine to apply, and its application means that the contract will be terminated (and not merely suspended for the duration of the event). Frustration will only apply where the event or circumstance was unforeseeable and not the fault of either party.

In Ontario, the relevant legislation is the Frustrated Contracts Act (the “FCA”). The FCA deals with the adjustment of rights and liabilities between the parties when a contract has been frustrated.   

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BUSINESSES IN CKL - BANKS ARE ROLLING OUT THE $40,000 LINE OF CREDIT - TIPS TO APPLY AND ENROLL

The big banks are now rolling out the procedure for applying for the new Canada Emergency Business Account (the "CEBA"), being the $40,000 line of credit available to registered businesses. 

For more information about CEBA and whether you qualify, check here: http://wardlegal.ca/31585663827865

To enroll for CEBA, you will likely be required to log into your bank's online banking for business account - enrollment will be online for most of the big banks. 

If you are not registered for online banking, you should do so on your bank's online registration page.

As part of the enrollment process, you will need: :

  1. to update your email and contact details with your bank, likely using your online for business profile, before starting your enrollment; 

  2. your business client card number; 

  3. your organization’s 2019 T4 Summary of Remuneration Paid statement - you can also contact the Canada Revenue Agency to have it re-issue your organization’s 2019 statement, if necessary; and 

  4. you will need to confirm that the person enrolling for CEBA has the authority to attest on behalf of your organization and legally bind the organization to the terms of the CEBA loan agreement.

More information about the CEBA is also available here: https://www.canada.ca/en/department-finance/economic-response-plan.html

 

 

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WORKING AT HOME BECAUSE OF COVID-19? TIPS AND HELP FOR DEDUCTING YOUR WORK-AT-HOME EXPENSES TO PAY LESS TAX

If you are incurring remote working expenses during the pandemic, you may be able to claim those expenses to reduce your tax payable under the Canada Income Tax Act.

Generally, employees with remote working expenses are paid either an allowance or they are reimbursed by their employer (including an “accountable advance”).

If you are paid an “allowance” for your home office expenses, the allowance should be deductible to you generally. If not, it would be a “taxable benefit” to you and not be deductible.

If you pay for your home office expenses initially, but your employer reimburses you afterwards, those expenses should be deductible generally, too.

In either case, you may be able to “deduct” your remote working expenses during the pandemic against your taxable income and, as a result, pay less tax. 

If you receive either an allowance or a reimbursement, which the Canada Revenue Agency deems a “taxable benefit” to you, your employer could also “gross up” your benefit by paying the additional tax payable by you – this is also a taxable benefit.

If you have remote working (i.e., home office) expenses while working remotely during the pandemic, here are some tips that you should consider, including speaking to your tax advisor for assistance and advice when you file your (now deferred) personal income tax form:

REIMBURSEMENTS BY YOUR EMLOYER FOR REMOTE WORKING EXPENSES:

  • you will need to give your employer your organized receipts (information) about your remote working expenses
  • your employer can reimburse you for those that are reasonable and related to you performing your employment duties
  • if an expense is a mix of both business and personal, your employer will likely have to report your reimbursement and you will likely be taxed on and for the personal component as a taxable benefit
  • if it is difficult to allocate the expense between business and personal, the CRA expects that a reasonable position will be taken by you and your employer
  • some mixed-use expenses cannot be tracked and documented accurately by actual receipts (i.e., mobile phone usage and/or data usage, unless used solely for business and, if so, your employer is unlikely to be able to reimburse you and, if it does, it is likely this expense may be deemed a taxable benefit to you
  • if your employer reimburses you for a “capital expense”, such as a new computer, printer, other hardware, or fixing up your home to accommodate you working remotely, you will be deemed to have received a taxable benefit, taxable to you, directly, but your employer is likely able to deduct the expense in full as a business expense, unless the CRA deems it unreasonable in the circumstances  
  • using a reimbursement, rather than an allowance, is likely preferable if you have one-time or irregular remote working expenses that you experience during the pandemic

MONTHLY ALLOWANCE FOR HOME OFFICE EXPENSES:  

  • if you receive a flat-rate allowance for your home office expenses, it will likely be a taxable benefit and, therefore, will be added to your income for tax purposes
  • if, for example, you earn an annual salary of $50,000, plus a remote office allowance of $50 monthly, the allowance would be added to your income, being $50,600
  • of the $50 monthly allowance, after you pay tax on it, you put in your pocket that amount, less your marginal tax rate on that amount, a net benefit to you (i.e., your “after-tax” allowance)
  • your employer should be able to deduct your allowance in full, as a business expense, unless the amount is deemed by the CRA to be unreasonable in the circumstances

DEDUCTING YOUR REMOTE WORKING EXPENSES:

To be able to deduct any of your remote working expenses against your taxable, employment income:

[1] your employment contract must require that you pay for the expenses at issue;

[2] your employer must sign a T2200 form, certifying the conditions required for your deductibility are met; and

[3] the expenses you claim for deduction must not have been reimbursed to you by the employer.

  • you may be able to deduct some of your remote working expenses against your taxable income on a reasonable basis
  • to deduct home office expenses: [a] your home office must be in the place where you principally perform your employment duties; and [b] your home office must be used exclusively during the period for which the expense relates (to earn income);   
  • examples: office supplies (stationary, toner, ink, cartridges, postage, etc.), some use of your mobile ‘phone expense, some use of your monthly Internet usage (i.e., data usage) and at least a portion of the expenses related to your remote working space at home (such as rent, electricity, maintenance, heating, etc., for only for your designated remote working area or space)  
  • you can only deduct the amount directly related to the performance of your duties of employ (a limitation on your deductibility)
  • effectively, to be deductible, your expense must be a supply you use or consume directly for the purpose of earning your employment income (on a reasonable basis), rather than a fixed cost that is not consumed by you during and for your employ
  • example: you cannot deduct hard-cost equipment that you do not consume directly to earn your income, such as computers, peripherals, etc.
  • if you earn an annual salary, you cannot deduct the expense of your mortgage, property taxes, etc. for the home you own and remotely work within
  • if you earn commission income only, you may be able to deduct a portion of your home expenses, including property taxes, home insurance, but not your mortgage payments

Note that if you are paid an allowance for your remote working expenses, which is included in your income as a taxable benefit, you potentially could still deduct those expenses if you incurred them to perform your duties of employ, provided the conditions above are satisfied.

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YOU DON'T QUALIFY FOR EI OR CERB. YOU NEED TO PAY RENT AND BUY ESSENTIAL GOODS. APPLY TO THE EMERGENCY FINANCIAL ASSISTANCE PROGRAM. CONTACT THE CITY OF KAWARTHA LAKES.

Do you need emergency financial support, but do not qualify for any federal payments (EI, CERB)?

Need to pay rent, or buy essential goods? Unemployed? Vulnerable? Living in poverty? 

Don’t give up – you can actually apply to the City of Kawartha Lakes (or your own municipality) for emergency support.

Emergency financial support may also be available to you, if you are experiencing financial crisis due to the virus pandemic, and who are unable to access other financial support, such as the new federal Government’s CERB.

This may include those of us who are vulnerable, such as living in poverty, homeless or those who are, or who have become, unemployed related to COVID-19.

Under the provincial Emergency Assistance program, if you have been laid off, told you cannot work or you are unable to work due to COVID-19, you may be entitled to receive up to $1,170 for a 48-day period.

Families with two children could be entitled to $2,000 for a 48-day period, if eligible.

Based on recent changes, you may also be entitled to access these benefits more than one time in any six-month period. 

This emergency benefit is intended to help with paying for needs, including food, rent, medicine, and other essential items.

If you do not qualify for EI regular or sickness benefits, you cannot access the new CERB, and you have limited access to other income/assets to assist you, you can apply for these emergency benefits, too. 

You should contact the City of Kawartha Lakes about this potential benefit and information on how to apply for your benefits.

To date, it does not appear that the City has made available an online application process.  You may have to apply by ‘phone.

The Ontario government is working on and trying to roll out a more streamlined and accessible application – it should be available soon from the province, too.

For now, and although the City does not appear to have information on its Web site about this potential benefit to you, you should contact the City’s Social Services division:

Toll free: 1-877-324-9870

Tel: 705-328-2875

You can also email that division here: https://www.kawarthalakes.ca/en/living-here/social-services.aspx

You can find more information here:

https://news.ontario.ca/opo/en/2020/03/changes-to-ontarios-emergency-assistance-program-in-response-to-covid-19.html

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CKL SMALL BUSINESSES, SOLE PROPRIETORS AND SELF-EMPLOYED - YOUR CHEAT SHEET FOR YOUR ELIGIBILITY FOR GOVERNMENT SUPPORT (THE NEW CERB, WAGE SUBSIDIES AND $40,000 LINE OF CREDIT)

Small businesses, sole proprietors and self-employed individuals in the City of Kawartha Lakes, as of April 9, 2020, help on whether you are eligible for the CERB, wage subsidies and the interest-free line of credit:

IF YOU OWN AND OPERATE A SMALL CORPORATION – AND YOU PAY YOURSELF A SALARY:

If so, and you pay yourself an annual salary through your corporation, then:

  • You do not qualify for the Canada Emergency Response Benefit (the “CERB”) ($500 weekly for up to 16 weeks) if you continue working
  • You do qualify for the CERB if you stop working for reasons related to COVID-19 and you have no income
  • You are eligible to apply for for the Cananda Emergency Wage Subsidiy (75% wage subsidy, up to $847 weekly for up to 3 months) or the alternative 10% wage subsidy (the “CEWS”)
  • You are eligible to apply for the Canada Emergency Business Account (“CEBA”) - $40,000 interest-free business loan/line of credit ($10,000 can be forgiven if $30,000 is paid off before Dec. 31, 2020)

For more information from us about qualifying for the CERB, check here: http://wardlegal.ca/31585663827879

For more information from us about qualifying for the CEBA, check here: http://wardlegal.ca/31585663827893 and here: http://wardlegal.ca/31586368607013

For more information about qualifying for the CEWS and how you calculate your wage subsidy, check here: http://wardlegal.ca/31585663827901

IF YOU ARE A SOLE PROPRIETOR (i.e., NO INCORPORATED BUSINESS) OR SELF-EMPLOYED:

  • You may be eligible for the CERB, if you continue working for less than 10 hours per week
  • You are eligible for the CERB if you stop working for reasons related to the virus
  • You are not eligible to receive the CEWS (either the 75% or 10% wage subsidy)
  • You are not eligible to receive the CEBA

IF YOU OWN AND OPERATE A SMALL CORPORATION – AND YOU PAY YOURSELF BY DIVIDENDS, NOT SALARY:

  • You are not eligible for the CERB if you continue working
  • You may be eligible for the CERB if you stop working, per the Canada Revenue Agency’s Web site update on Apr. 6, 2020
  • You are not eligible for the CEWS (both the 75% and 10% wage subsidies) or the CEBA
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YOU CAN STILL MAKE YOUR OWN WILL AND POWERS OF ATTORNEY, IF NECESSARY, IF YOU CANNOT VIRTUALLY DO IT WITH YOUR QUALIFIED LAWYER - WHAT YOU NEED TO KNOW TO MAKE A "HOLOGRAPH" WILL. ALSO - THE REQUIREMENTS FOR YOUR FORMAL WILL

By emergency order made on April 7, 2020, any person may now sign a will and powers of attorney virtually, or remotely, with your lawyer or licensed representative.

This new measure will make it much more convenient for you to make a new will and powers of attorney, particularly during isolation and the need to comply with the other pandemic containment requirements.

HOLOGRAPH WILLS:

However, a person may still make a “holograph” will in Ontario.

A holograph will:

  • must be “wholly” in your hand-writing, as the “testator” [Note: the hand-written portion of your document will likely be valid, even if the entire document is not in your hand-writing - to the extent any part of the document is not in your own hand-writing, that part will be excluded from your otherwise valid holograph document];
  • you must sign it;
  • your document must contain these key provisions:
  • it identifies your document as your “Will”;
  • it revokes any prior will you may have made;
  • it appoints your trustee/executor;
  • it contains simple dispositive provisions (i.e., how your estate is to be distributed and to whom);
  • it contains a ‘power to sell’ clause for your trustee/executor; and
  • it must be dated and signed by you.

It is critical that your document be entirely in your hand-writing and be signed by you at the end of the document.

If you holograph may need to be ‘probated’, which is common, proof of your hand-writing will be necessary. You could video yourself preparing and signing the document – that should be sufficient.

However, now that wills and powers of attorney may be signed virtually with your lawyer, you should also contact a qualified lawyer to arrange to prepare and sign a formal will and related estate planning documents as soon as practicable. 

YOUR FORMAL WILL:

In Ontario, before April 7, 2020, the formal requirements for your (non-holograph) valid will are set out by Ontario’s Succession Law Reform Act:

  1. the will must be in writing;
  2. the will is signed at the end by either you, the “testator”, or by some other person in your presence and acting under your direction;
  3. the will is signed or acknowledged by you in the presence of at least two attesting witnesses who are present at the same time; and
  4. at least two attesting witnesses sign/subscribe the will in your presence.

As of April 7, 2020, you can sign your will and powers of attorney virtually with your lawyer (i.e., your witnesses do not have to be physically present when you sign your will), subject to a few conditions. 

If you cannot read or write, you may be   unable to sign your name in the ordinary sense. However, a wide variety of “marks” have been judicially considered to have intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most people will be able to execute a will without difficulty.

The same issues may arise for a person who has physical difficulty with signing a will. 

While Ontario allows for some flexibility in how you “sign” your will, it is important to be cautious and taken certain steps to ensure that the requirement of your knowledge and approval of your will are not later questioned.

If there is any issue of capacity, or difficultly with the English language, for example, it is important to generate evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.

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YOU CAN NOW SIGN YOUR WILL OR POWER OF ATTORNEY VIRTUALLY (REMOTELY) WITH YOUR LAWYER - NEW EMERGENCY ORDER

An emergency “Order In Council” was made on April 7, 2020, under s. 7.1 of the Emergency Management and Civil Protection Act regarding the virtual commissioning and execution of wills.

Read the emergency order here: https://www.ontario.ca/search/orders-in-council

Now, by order under s. 7.0.2(4), of Ontario’s Emergency Management and Civil Protection Act, witnessing of wills and powers of attorney may be virtual (by “audio visual” means), provided that at least one person who is providing the service as a witness is a licensee pursuant to Ontario’s the Law Society Act (i.e., a lawyer or licensed paralegal). 

“Audio visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with each other in real time. 

The Order is not retroactive and will be in place for the duration of the declaration of emergency.

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CKL BUSINESS OWNERS - EXPANDED/RELAXED QUALIFICATION FOR THE 75% WAGE SUBSIDY - WHAT YOU NEED TO KNOW TODAY

For the Canada Emergency Wage Subsidy [75% wage subsidy] (the “CEWS”), today the federal government announced (subject to Parliamentary ratification):

[1]      you will have the option of using January and February of 2020 as your reference periods, rather than the original year-over-year benchmarks, under certain conditions;

[2]        you may also be permitted to use January and February, 2020, respectively, as your reference periods to calculate your decline in revenue (In addition to the original calculation periods for calculating if you meet the threshold 30% reduction in revenues), including newer businesses (i.e., start ups) that may not have the necessary historical revenue information;

[3] to claim the subsidy for March of 2020, only a reduction in revenue of 15% will be required, rather than 30%; and
[4] after March, 2020 (i.e., two additional months), the decline must still be at least 30%.

Here is more information from us about the CEWS and how you qualify and apply: http://wardlegal.ca/31585663827857

 

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MORE SUPPORT TO STUDENTS AND YOUNG CANADIANS (15 TO 30) - CHANGES TO THE CANADA SUMMER JOBS PROGRAM ANNOUNCED TODAY

Today, April 8, 2020, the federal government announced temporary changes to the Canada Summer Jobs program, intended to help employers hire summer staff and provide young Canadians access to the jobs they need during this unprecedented time.

The government declared this program upgrade will help create up to 70,000 jobs for those between the ages of 15 and 30 years of age.

The temporary changes to the program:

  • an increase to the wage subsidy, so that private and public sector employers can also receive up to 100 per cent of the provincial or territorial minimum hourly wage for each employee;
  • an extension to the end date for employment to February 28, 2021;
  • allowing employers to adapt their projects and job activities to support essential services; and
  • allowing employers to hire staff on a part-time basis.

According to the government, these changes will help youth stay connected to the labour market, save money for their future, and find quality jobs in safe, inclusive, and healthy work environments.

Other measures have previously been announced to assist young Canadians during the crisis, including: [1] a six-month, interest-free moratorium on Canada Student Loans; and [2] a 75 per cent wage subsidy for businesses that will help more employers keep part-time employees and workers over the coming months.

The Canada Summer Jobs program provides opportunities for youth to develop and improve their skills within the not-for-profit, small business, and public sectors, and supports the delivery of key community services.

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CKL BUSINESS OWNERS - HELP AND TIPS TO GET YOUR NEW $40,000 INTEREST-FREE LINE OF CREDIT FROM YOUR BANK - WHAT YOU NEED TO KNOW

Small-and-medium-sized business owners in the City of Kawartha Lakes – an update:

THE CANADA EMERGENCY BUSINESS ACCOUNT (“CEBA”) – A $40,000 OPERATING LINE OF CREDIT:

Eligible businesses will receive a $40,000 line of credit loan for immediate financial support to cover short term operating expenses, payroll and other non-deferrable expenses which are critical to sustain business continuity.

Additional information:

  • it’s a $40,000 government‑guaranteed loan to help eligible businesses pay for operating expenses, payroll and other non-deferrable expenses which are critical to sustain business continuity;
  • until December 31, 2020, the CEBA will be funded as a revolving line of credit for $40,000;
  • after December 31, 2020, any outstanding balance on the revolving $40,000 line of credit will be converted into a non-revolving 5‑year term loan maturing on December 31, 2025, at which time the balance must be paid in full;
  • no interest applies until January 1, 2023;
  • beginning on January 1, 2023, interest accrues on the balance of the term loan at the rate of 5% per annum, payable monthly on the last day of each month;
  • if you pay 75% of the balance of the term loan (as at January 1, 2021), on or before December 31, 2022, the remaining balance of your term loan will be forgiven. For example, if your balance is $40,000 on January 1, 2021 and you repay $30,000 on or before December 31, 2022, the remaining $10,000 will be forgiven; and
  • if you do not repay 75% of the balance of the term loan (as at January 1, 2021) on or before December 31, 2022, the full loan balance and all accrued and unpaid interest will be due and payable on December 31, 2025.

TO QUALIFY FOR CEBA:

To enroll for CEBA through a specific bank:

  • that bank will need to be your primary financial institution; and
  • you will need a business deposit account with that bank.  

To qualify:

  • your business is a registered and operational business on or before March 1, 2020;
  • the person enrolling for the CEBA must have the ability and authority to bind the organization/business;
  • your payroll expense is between $50,000 and $1 million - to confirm this, you will be required to provide the following information:
    • your employer account number, as reported at the top of your 2019 T4 Summary of Remuneration Paid;
    • your employment income reported in Box 14 of your 2019 T4 Summary of Remuneration Paid; and
    • a copy of your 2019 T4 Summary of Remuneration Paid, if requested.
  • you will also need to agree to use funds from this loan to pay for operating costs that cannot be deferred, such as payroll, rent, utilities, insurance, debt payments and property tax.

Note:

The payroll expense above does not appear to restrict pay to the owner(s) of the business, such as wages, dividends, etc. Accordingly, it appears that not only employees, but owners, who are also employees, or who also act as employees, too, may be included to calculate the annual payroll expense. 

Note:

Sole proprietors do not qualify for CEBA. The banks will not facilitate CEBA for an individual; it is only available to business clients who have been a registered operation on or before March 1, 2020 with a business operating account.

More information for sole proprietors (individuals) and additional relief measures can be found here: https://www.canada.ca/en/department-finance/economic-response-plan.html.

ENROLLMENT FOR CEBA:

Your bank will likely require that you enroll online only.

The banks are attempting to accept online enrollments starting in the week of April 6, 2020.

Ask your bank to notify you when online enrollment is available.

You cannot enroll for the CEBA at more than one bank. Businesses must enroll for the CEBA at their primary financial institution, where they have an existing business banking account and cannot apply at more than one financial institution. Doing so may result in legal prosecution by the federal government.

PREPARING FOR YOUR ENROLLMENT:

To prepare for enrolling, you should:

  • update your email and contact information with your bank, which you could do online, if possible; and
  • find your 2019 T4 Summary of Remuneration Paid statement, which you can obtain from the Canada Revenue Agency, if necessary.  

WHEN THE LOANS WILL BE AVAILABLE TO YOU:

This remains uncertain, mostly because it depends on your bank’s ability to process your enrollment and open your revolving line of credit.

Enrollment is likely to be online only, so you should regularly check with your bank for when online application becomes available.

Your bank will contact you when your enrollment process is live. 

MULTIPLE BUSINESSES:

If you own or operate multiples businesses, each business entity may enroll for CEBA.

Each business must individually meet the eligibility criteria.

MULTIPLE OWNERS OF THE BUSINESS:

You must ensure that the person enrolling your organization has the authority to attest on behalf of the organization and bind the organization to the terms of the CEBA loan agreement.

INTEREST ON THE LOAN:

  • until December 31, 2020, the CEBA will likely be funded as a revolving line of credit for $40,000;
  • after December 31, 2020, any outstanding balance on the revolving $40,000 line of credit is likely to be converted into a non-revolving 5‑year term loan maturing on December 31, 2025, at which time the balance must be paid in full;
  • no interest applies until January 1, 2023;
  • commencing on January 1, 2023, interest accrues on the balance of the term loan at the rate of 5% per annum, payable monthly on the last day of each month;
  • if you pay 75% of the balance of the term loan (as at January 1, 2021), on or before December 31, 2022, the remaining balance of your term loan will be forgiven. For example, if your balance is $40,000 on January 1, 2021 and you repay $30,000 on or before December 31, 2022, the remaining $10,000 will be forgiven; and
  • if you do not repay 75% of the balance of the term loan (as at January 1, 2021) on or before December 31, 2022, the full loan balance and all accrued and unpaid interest will be due and payable on December 31, 2025.

WHEN TO START REPAYMENT ON THE LOAN:

You may start repaying the loan in part or in full at any time, but repayment is not required until December 31, 2025 at which time the entire loan and all accrued and unpaid interest is due.

IF YOU RECEIVE OTHER COVID-19 RELIEF:

If you are receiving other COVID-19 relief, such as the CERB, you may still apply for CEBA.

DEFERRING CREDIT CARD PAYMENTS:

Most of the banks, if not all, are accepting requests to temporarily waive the requirement that you pay your minimum payment on your credit card for up to two months. Some banks have set up new, online webforms to do so. If you need relief beyond the two-month period, you should contact your bank advisor for additional deferrals up to a total of six months.

However, requests are not guaranteed.

Deferred payments will not be reported to credit bureaus as missed payments.

During the deferral period, you will continue to accrue interest charges at your current annual interest rates and we will add those charges to your outstanding balance.

This may increase the outstanding balance on your credit card at the end of the deferral period.

Most banks, if not all, will not charge interest on accrued interest.

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WSIB RELIEF TO EMPLOYERS - DEFERRAL OF PREMIUMS

The Workplace Safety and Insurance Board (“WSIB”) has announced that it will provide relief for employers' payments to the WSIB.

The financial relief package permits employers to defer the reporting and payment of premiums until August 31, 2020. This deferral is available to employers who report and pay monthly, quarterly or annually based on their insurable earnings.

Specifically, deferral is available for the following payments:

Monthly: March 31, April 30, May 31, June 30, July 31, Aug 31

Quarterly: April 30, July 31

Annual: April 30

This applies to Schedule 2 employers, too, which includes publicly funded organizations (municipalities, hospitals, school boards), self-funded organizations that are legislated by the province, as well as businesses who are involved in federally regulated industries. All payment obligations for Schedule 2 employers will be deferred until August 31, 2020.

There will be no accrual of interest on outstanding premium payments for Schedule 1 employers, nor will any penalties be charged during this six-month deferral period. Schedule 2 account balances will not accrue debit interest as part of the relief package. Participation in the financial relief package is not mandatory, and employers can continue to report and pay on a monthly, quarterly or annual basis.

Employers can also report now and defer payment until later.

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UPDATED GROCERY STORE PROTOCOL IN THE CKL - PER ALL RECOMMENDATIONS BY GOVERNMENT AND HEALTH OFFICIALS (FOR ALL ESSENTIAL SERVICES)

Line ups are increasing outside our essential services, particularly grocery stores. 

Here an updated list of grocery store protocol, per all of the recommendations made to date by the federal and provincial governments and health officials, including the Health Unit.  

  1. follow the containment measures implemented by the essential service, including the waiting outside to enter, one-way arrows, standing on the taped distance lines, etc.;
  2. always engage in the ‘hockey stick’ rule (i.e., physical distancing of two metres; six feet), including with essential workers;
  3. only one family member should attend the essential service, not more;
  4. wear your non-medical (cloth) mask, primarily to protect others from you, if you may be asymptomatic;  
  5. only buy groceries, get gas, get your drugs, etc. no more than one per week; no social browsing or shopping – if possible, limit it to once bi-weekly;
  6. do not attend with your own bags or containers;
  7. minimize any chit-chat and social interaction with any other customers or essential service workers; no gathering; no idle talking;
  8. adhere to all COVID-19 containment measures, including coughing, if necessary, into your elbow, washing your hands thoroughly immediately before and after you attend the essential service;
  9. minimize your time in the essential service – prepare and take a list in advance; no browsing;
  10. importantly, do not vent to the essential workers – they are endangering themselves to help you; none should be exposed to ridicule, criticism, complaints or general frustration;
  11. thank every essential worker you see, if possible – just a quick, “Thank you for everything” – no need to engage in a discussion;
  12. if possible, consider providing a tip to an essential worker and, if so: a) strictly physically distance; and b) provide the cash tip in an envelope and lay it at the counter only; and
  13. be civil, respectful, polite, courteous and cordial to everyone, particularly the essential workers, as you would at any time before the onset of this pandemic.

Altruism and comity must triumph; it is how we will overcome this crisis.

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BUSINESS OWNERS - DENIED BUSINESS INTERRUPTION INSURANCE DURING COVID-19? NEW CLASS ACTION STARTED - JOINT THE CONTACT LIST - ANSWERS TO YOUR QUESTIONS

Business interruption insurance is a hot-button issue for business owners effected by COVID-19.

Most, if not, insurance companies have denied any claims made by business owners for business interruption coverage, including those forced to close by provincial emergency order as being “non-essential” workplaces.

Now, a class action has been commenced for these denials, so far against the following insurance companies: Aviva, Co-Operators Insurance, Desjardins, Economical Insurance, Intact, Lloyd’s, Northbridge, Royal & Sun Alliance, TD General Insurance, Wawanesa Mutual Insurance and Wynward Insurance Group.

WHAT IS BUSINESS INTERRUPTION INSURANCE?

Generally, business interruption insurance is part of first-party commercial property insurance.

Usually, the insurer agrees to pay to, or reimburse, the business owner for the actual loss of business income the business experienced because of the interruption to the business itself, including while the business if being restored, when the interruption was caused by direct physical loss, damage, or destruction to property, caused by an insured against peril.

Accordingly, physical damage to the place of business is a prerequisite. 

In addition, the interruption must have been caused by the physical damage.

With COVID-19, it may be problematic to prove direct physical loss or damage.

Furthermore, it not uncommon for a business interruption policy to exclude perils such as viruses and disease.

There may also be problems establishing that virus caused the business losses. For example, for businesses deemed to be "essential" by the Ontario Government, the insurer may take the position that, for example, the losses were caused by the owner's decision to preemptively close the business due to fear of the virus.

For "essential" businesses, that may not be such an issue.  

In any event, insurers do sell policy coverage and endorsements offering protection for business interruption caused by a disease. If any owner had such coverage, it would be advisable to consider making a claim.

There may also be an insurance endorsement covering business loss sustained by the owner due to an inability to access the business premises, particularly where it is prohibited by any government order, or the directive of any other civil authority.  This is certainly the case currently for "non-essential" businesses in Ontario. It is also likely that more businesses will, in the near future, be declared "non-essential", as the virus progresses throughout our province. 

Moreover, a business owner may also have purchased “contingent business interruption” coverage, which protects the business from losses resulting from damage caused by interruption of supply. However, often the business interruption must be caused by damage to the suppliers’ property.

Often whether there is available coverage will depend on the specific language in the policy or endorsement; not all policies are the same - there is no standard language. In fact, may policies vary in terms of the language and coverage options. It will also depend on the nature of the loss, having regard to the language of the policy.  

Therefore, if you are a business owner with a commercial insurance policy, you should promptly review your policy and speak to your insurance broker for additional guidance. Ultimately a claim should potentially be considered for business loss arising from COVID-19 and the municipal, provincial and federal government's remedial responses to the virus pandemic. 

Indeed, keep a watchful eye on this issue, as the governments' response will surely develop and change as the virus continues to spread.  

Interestingly,  the March 18, 2020 “National Law Review” reports that a lawsuit was commenced by a restaurant owner in the State of Louisiana asking for the Court declare that its insurance policy did not contain any exclusion for viral pandemic. The owner claimed the commercial policy covers the restaurant business for any future government-related shutdown orders, due to physical loss from COVID-19 contamination. The owner also claimed the insurer should be legally required to provide income coverage if COVID-19 were to contaminate the restaurant.

The owner basically claimed that contamination of the insured place of business by COVID-19 constitutes a direct physical loss, thereby necessitating remediation to clean the surfaces of the establishment. 

The Court has not made its final decision, but certainly the issue is already being raised judicially. 

Mind you, this is entirely different jurisdiction, whose laws do not apply directly in Ontario. 

WHAT SHOULD I DO?

What should you, as a business owner, do? 

If you have a commercial insurance policy, review it. 

Contact your broker for his or her advice on whether business interruption insurance should be claimed to the insurer. 

However, remember that insurance brokers, like many others, are flooded with enquiries on all fronts. Therefore, be patient.

Ultimately it is the insurer who must either allow or deny the claim - a broker cannot do so and you should not exclusively rely on your broker's advice about whether to bring a claim, or not - rather, your broker's advice and guidance is a factor to consider in your decision.  

Even if a tenable claim cannot now be made, that may change in the future, as the uncertainty of this virus continues to move forward. 

THE CLASS ACTION LAWSUIT:

As expected, the issue has now found its way to our Ontario Court.

A class action has been commenced.

The class action is Canada-wide, commenced on behalf of Canadian business owners and some self-employed professionals who have been denied business interruption insurance during COVID-19.

So far, the following insurance companies have been sued: Aviva, Co-Operators Insurance, Desjardins, Economical Insurance, Intact, Lloyd’s, Northbridge, Royal & Sun Alliance, TD General Insurance, Wawanesa Mutual Insurance and Wynward Insurance Group.

If you are a business owner, you can join the contact list for the “Business Interruption Insurance Class Action”. It does not impose any financial obligation on you and your information is promised to be kept confidential.

To do so, go here:  https://www.merchantlaw.com/class-actions/business-interruption-insurance-class-action/

To read more about this class action, go here: https://globalnews.ca/news/6776068/class-action-launched-insurers-covid-19/

 

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CANADA EMERGENCY RESPONSE BENEFIT (CERB) NOW AVAILABLE - A CHEAT SHEET - EVERYTHING YOU NEED TO KNOW TO QUALIFY AND APPLY FOR THIS FINANCIAL HELP

The Canada Emergency Response Benefit (the "CERB") is now available for residents of the City of Kawartha Lakes who qualify for this financial support. 

Here is your need-to-know information:

WHAT IS CERB?

The CERB provides $2,000 a month for up to four months to individuals who have ceased working due to COVID-19.

By contrast, EI benefits are 55% of normal weekly earnings, up to a maximum of $573 per week.

WHEN IS IT AVAILABLE

The online portal to apply for CERB is now available, as of April 6, 2020.

The Federal Government has recently indicated the benefit may be paid out within four to five days, but has committed to making CERB payments within 10 days of application.

The CERB is paid every four weeks and available from March 15, 2020 until October 3, 2020.

As of April 6, 2020, those who sign up to receive the CERB by direct deposit should receive the first CERB payment within 3-5 days of their application.

For those who choose to receive the benefit by mail, payment should be received within 10 days of their application.

You must re-apply and confirm your eligibility for the CERB every four weeks.

The maximum CERB entitlement is up to 16 weeks.

WHO IS ELIGIBLE?

The CERB is available to individuals aged 15 or over who:

  • had income of at least $5,000 in 2019 or the 12 months preceding their application for the CERB;
  • cease working for reasons related to COVID-19; and
  • receive no income for at least 14 consecutive days within the four-week period for which the CERB is claimed, regardless of whether they are EI-eligible or not.

This includes residents in the City of Kawartha Lakes who are: 

  • unemployed due to termination of employment;
  • sick;
  • quarantined;
  • taking care of someone who is sick with COVID-19;
  • working parents who must stay home without pay to care for children who are sick or at home because of school and daycare closures;
  • still employed, but are not receiving income because of disruptions to their work situation due to COVID-19; and
  • contract workers and self-employed individuals who would not otherwise be eligible for EI.
  • If you have stopped working because of COVID-19, you should apply for CERB, whether or not you are eligible for EI. The Benefit is available for the period from March 15, 2020 to October 3, 2020.
  • There is now only a single portal to assist you with the application process.

An employee who quits voluntarily is not eligible for the CERB.

If you are not a Canadian citizen, to be eligible for the CERB, you must reside in Canada and have a valid SIN. Employees who are not Canadian citizens or permanent residents, including temporary foreign workers and international students, may be eligible to receive the CERB if they meet the other eligibility requirements.

DO I HAVE TO BE LAID OFF FROM MY JOB TO APPLY FOR CERB?

  • no, an employee is eligible for the CERB even if they continue a relationship with the employer (i.e., you have not been laid off);
  • you must have stopped working as a result of COVID-19, and be without employment income for at least 14 consecutive days within the initial four-week period; and
  • you can also apply for the CERB if you are eligible for EI regular or sickness benefits.

DO I APPLY FOR CERB OR EI

The CERB is available to eligible individuals, whether they qualify for EI or not. 

The Federal Government has indicated that:

  • individuals who are already receiving EI regular and sickness benefits would continue to receive their benefits and should not apply for the CERB;
  • individuals who have already applied for EI and whose application has not yet been processed would not need to re-apply. It is not clear whether this means that the EI applications already in the system will continue to be processed in the normal course or be automatically "converted" into CERB applications; and
  • individuals whose EI benefits cease before October 3, 2020 could apply for the CERB once their EI benefits cease, if they are unable to return to work due to COVID-19.

It is not clear whether the CERB will replace EI entirely during the period of March 15, 2020 to October 3, 2020, as the Federal Government's announcement seems to suggest that individuals can continue to apply for EI.

If you became eligible for EI regular or sickness benefits on March 15, 2020 or later, your claim will be automatically processed through the Canada Emergency Response Benefit.

You can still apply to EI for other benefits, including maternity, parental, caregiving, fishing and work-sharing.

WHAT IF MY CLAIM FOR IE HAS NOT YET BEEN PROCESSED?

  • do not reapply for the CERB;
  • if you became eligible for EI prior to March 15, 2020, your claim will be processed under the pre-existing EI rules; and
  • if you became eligible for EI regular or sickness benefits on or after March 15th, your claim will be automatically processed through the CERB.

WHAT IF I MAKE OTHER INCOME WHILE RECEIVING THE CERB?

To be eligible, you must have stopped working as a result of COVID-19 and be without employment income for at least 14 consecutive days within the initial four-week period (i.e., March 15 - April 11). 

The next CERB cycle begins April 11.

After that time, you must expect to have no employment income.

If you continue to receive non-employment income, such as from investments, rental income, etc., you continue to be eligible for the CERB.

CAN I GET A TOP-UP FROM MY EMPLOYER, TOO

No, at least not for now. 

Individuals are eligible for the CERB if they do not receive income from employment or self-employment during the days on which they have ceased working. It remains to be seen if the Federal Government will introduce regulations that would allow individuals to receive top-up benefits from their employers without eliminating or reducing the CERB, similar to the Supplemental Unemployment Benefit Program for EI.

IF EI WILL PAY ME MORE AND I CAN GET IT, WILL I GET THE HIGHER EI AMOUNT (MORE THAN $500 WEEKLY)?

 

You will be paid the CERB amount, even if you may be eligible for more through EI regular or sickness benefits.

If you apply for the CERB, you will receive $500 per week, regardless of what you may have been eligible to receive through Employment Insurance.

If you believe you may be eligible for EI regular or sickness benefits, you retain that eligibility to receive EI after you stop receiving the CERB, and the period that you received the CERB does not impact your EI entitlement.

WHAT IF I AM A STUDENT?

Unfortunately, the CERB is only available to those who stopped work as a result of reasons related to COVID-19.

If you are seeking employ, but have not stopped working because of COVID-19, you are not eligible for the CERB.

If you are a student who had a job last year and were planning on working this summer, you do not qualify for the benefit.

IS IT TAXABLE

Yes, at least for now, but deductions will not be made at source. 

Therefore, individuals will receive the entire $2,000 every four weeks.

The $2,000 benefit will be paid in blocks of four weeks (i.e., equivalent to $500 weekly).

The CERB is currently available for a maximum 16 weeks, but that may be extended.

You will have to report the benefit as income when you file your income tax for the 2020 tax year.

WHERE AND HOW DO I APPLY FOR THE CERB?

  • if you are registered, you can apply for CERB through your MyAccount portal on the Canada Revenue Agency Web site here: https://www.canada.ca/en/revenue-agency/services/e-services/e-services-individuals/account-individuals.html;  
  • if you are not registered, applications for the CERB are open today, April 6, 2020 here: https://www.canada.ca/en/revenue-agency/services/benefits/apply-for-cerb-with-cra.html#how;
  • If you do not have online access, call the toll-free number 1-800-959-2019;
  • due to anticipated volume, the CRA requires that those with birthdays between January and March to apply on Monday; April to June on Thursdays; July to September on Wednesdays and October to December on Thursdays. 
  • anyone can apply on Fridays and weekends; and
  • the online portal will be closed from 3am to 6am everyday for site maintenance.

 

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CONSTRUCTION - WHAT MUST BE CLOSED? WHAT MAY CONTINUE? HOW DO I REPORT?

Construction work is creating some uncertainty throughout Ontario, including in the City of Kawartha Lakes. 

All construction projects and service must stop, except for: 

[1] Healthcare construction: 

Construction projects and services associated with the healthcare sector, including new facilities, expansions, renovations and conversion of spaces that could be re-purposed for health care space; 

[2] Ontario critical infrastructure construction: 

Construction projects and services required to ensure safe and reliable operations of, or to provide new capacity in, critical provincial infrastructure, including transit, transportation, energy and justice sectors beyond the day-to-day maintenance; 

[3] Critical industrial construction: 

Critical industrial constructive activities required for: 

[a] the maintenance and operations of petrochemical plants and refineries; 

[b] significant industrial petrochemical projects where preliminary work has already commenced; and 

[c] industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance, and/or enhancement of Personal Protective Equipment, medical devices (such as ventilators), and other identified products directly related to combating the COVID-19 pandemic.

[4] Very limited residential construction: 

Specifically, all residential construction must stop, except where:

[a] a footing permit has been granted for single family, semi-detached and town homes; 

[b] an above grade structural permit has been granted for condominiums, mixed use and other buildings; or

[c] the project involves renovations to residential properties and construction work was started before April 4, 2020.

​[5] To close constructive sites or activities: 

Construction and maintenance activities necessary to temporarily close construction sites that have paused or are not active and to ensure ongoing public safety.

If you have questions about what is not permitted to be open  or impacts to your business or employment, call the Stop the Spread Business Information Line at 1-888-444-3659.

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WORKING AT HOME CAN BE HARD FOR BOTH YOU AND YOUR EMPLOYER - TIPS AND GUIDANCE TO YOU BOTH FOR DOING IT SUCCESSFULLY

Virtually or remotely working (from home) can be very challenging to both employees and employers.

During this pandemic, typical work procedures and arrangements must be modified and be adaptive to the new reality.

Here is some guidance and tips to both employees working at home, and employers who now must lead them remotely.

IF YOU ARE WORKING REMOTELY OR AT HOME:

  • maintain structure;
  • plan your day, as if you are going to work (follow your morning routine, try to do the same things you would ordinarily do when starting your day, subject to your other responsibilities at home, like trying to parent children at home due to the school closures;  
  • make adjustments, if needed, to the hours you ordinarily would work in the office, because of child care and other responsibilities you may now have, because you are sharing equipment with a partner who is also working from home, or for any other reason;
  • keep your employer updated on your success with your arrangements for working remotely - they will appreciate you doing so; 
  • set up a designated space for working;
  • if you are struggling with the transition, focus on the benefits (i.e., how much commute time are you saving? Consider gas, transit, coffee, or parking savings, too);
  • use technology to stay present and connected - structure your daily schedule to accommodate communication with co-workers – find new ways to maintain connection, to help prevent feelings of isolation;
  • subject to the emergency orders and healthcare officials’ recommendations, take the time to get fresh air and exercise; even in times of self-isolation, a physically distanced walk can help maintain sanity and good health;
  • if you feel like you need more guidance when working from home, initiate regular check-ins with your manager to provide more structure;  
  • good, regular communication with your employer and co-workers is essential;
  • try not express your frustration or dismay by email or texts – talk through issues by ‘phone or virtually; and
  • give yourself a break, especially if you have children at home for whom you care – don’t be too hard on yourself; you’re only human!

IF YOU ARE MANAGING EMPLOYEES WORKING REMOTELY OR AT HOME:

Leading remotely can be challenging – some guidance to be successful:  

  • check in regularly with your employees – make them feel comfortable and connected;
  • schedule regular team meetings or virtual sessions, as well as one-on-ones, to maintain the flow of work and communication;
  • e-mail and instant messages can lack tone and create misunderstandings - lead by example by not jumping to assumptions and address potential conflict immediately;
  • even if you have known your employees for years, work to maintain strong relationships from a distance;
  • express appreciation for your team, acknowledge birthdays and other special events or occurrences;
  • encourage your employees maintain work-life balance and wellness – help them set boundaries to ensure the home is not an around-the-clock workplace;
  • set clear start and finish times for yourself, as well as breaks that would normally occur in the office;
  • let your employees know when you will be “out”, or taking a break;
  • take advantage of e-mail, instant messaging and virtual technology to facilitate different ways to communicate;
  • turn video on for one-on-ones and team meetings - help your team feel more present and engaged;
  • shift to a results-focused mindset, rather than a time-focused mindset by setting clear performance goals; and
  • facilitate more flexibility with schedules, and less anxiety for parents that may be having to split their time between managing children and work.

ONTARIO’S HUMAN RIGHTS (FOR EMPLOYEES):

Remember that employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Assuming that someone has the virus because they happen to have exhibited one of the symptoms of the virus and because of an assumption about where they are from based upon how they look would most likely be considered discrimination.

If an employer were aware of this differential treatment and chose to do nothing about it, they could be exposed to liability since employers are in most cases vicariously liable for the actions of their employees.

Differential treatment related to this virus is not permissible.

Employers should likely go further and communicate that any employee who behaves in such a manner will be subject to corrective action and, possibly, discipline.

 

 

read more

WORKING AT HOME IS HARD FOR BOTH YOU AND YOUR EMPLOYER - TIPS AND GUIDANCE TO YOU BOTH SO YOU DO IT SUCCESSFULLY

Virtually or remotely working (from home) can be very challenging to both employees and employers.

During this pandemic, typical work procedures and arrangements must be modified and be adaptive to the new reality.

Here is some guidance and tips to both employees working at home, and employers who now must lead them remotely.

IF YOU ARE WORKING REMOTELY OR AT HOME:

  • maintain structure;
  • plan your day, as if you are going to work (follow your morning routine, try to do the same things you would ordinarily do when starting your day, subject to your other responsibilities at home, like trying to parent children at home due to the school closures;  
  • make adjustments, if needed, to the hours you ordinarily would work in the office, because of child care and other responsibilities you may now have, because you are sharing equipment with a partner who is also working from home, or for any other reason;
  • keep your employer updated on your success with your arrangements for working remotely - they will appreciate you doing so; 
  • set up a designated space for working;
  • if you are struggling with the transition, focus on the benefits (i.e., how much commute time are you saving? Consider gas, transit, coffee, or parking savings, too);
  • use technology to stay present and connected - structure your daily schedule to accommodate communication with co-workers – find new ways to maintain connection, to help prevent feelings of isolation;
  • subject to the emergency orders and healthcare officials’ recommendations, take the time to get fresh air and exercise; even in times of self-isolation, a physically distanced walk can help maintain sanity and good health;
  • if you feel like you need more guidance when working from home, initiate regular check-ins with your manager to provide more structure;  
  • good, regular communication with your employer and co-workers is essential;
  • try not express your frustration or dismay by email or texts – talk through issues by ‘phone or virtually; and
  • give yourself a break, especially if you have children at home for whom you care – don’t be too hard on yourself; you’re only human!

IF YOU ARE MANAGING EMPLOYEES WORKING REMOTELY OR AT HOME:

Leading remotely can be challenging – some guidance to be successful:  

  • check in regularly with your employees – make them feel comfortable and connected;
  • schedule regular team meetings or virtual sessions, as well as one-on-ones, to maintain the flow of work and communication;
  • e-mail and instant messages can lack tone and create misunderstandings - lead by example by not jumping to assumptions and address potential conflict immediately;
  • even if you have known your employees for years, work to maintain strong relationships from a distance;
  • express appreciation for your team, acknowledge birthdays and other special events or occurrences;
  • encourage your employees maintain work-life balance and wellness – help them set boundaries to ensure the home is not an around-the-clock workplace;
  • set clear start and finish times for yourself, as well as breaks that would normally occur in the office;
  • let your employees know when you will be “out”, or taking a break;
  • take advantage of e-mail, instant messaging and virtual technology to facilitate different ways to communicate;
  • turn video on for one-on-ones and team meetings - help your team feel more present and engaged;
  • shift to a results-focused mindset, rather than a time-focused mindset by setting clear performance goals; and
  • facilitate more flexibility with schedules, and less anxiety for parents that may be having to split their time between managing children and work.

ONTARIO’S HUMAN RIGHTS (FOR EMPLOYEES):

Remember that employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Assuming that someone has the virus because they happen to have exhibited one of the symptoms of the virus and because of an assumption about where they are from based upon how they look would most likely be considered discrimination.

If an employer were aware of this differential treatment and chose to do nothing about it, they could be exposed to liability since employers are in most cases vicariously liable for the actions of their employees.

Differential treatment related to this virus is not permissible.

Employers should likely go further and communicate that any employee who behaves in such a manner will be subject to corrective action and, possibly, discipline.

 

read more

LIST OF ONTARIO's EMERGENCY ORDERS TO DATE EFFECTING DAY-TO-DAY LIFE FOR RESIDENTS OF THE CITY OF KAWARTHA LAKES - LIST OF THE STEEP PENALTIES FOR NON-COMPLIANCE (INCLUDING JAIL TIME)

Ontario has extended its Declaration of Emergency to April 13, 2020 – that is likely to be extended.

Social or physical distancing is not a law to date. Neither is any requirement to stay at home, although the Ontario government, and others, regularly decry this request.

ONTARIO EMERGENCY ORDERS TO DATE (APRIL 6, 2020):

Ontario has made these emergency orders that impact the day-to-day life of residents of the City of Kawartha Lakes:

Additional emergency orders have also been made, but do not directly impact residents’ day-to-day life.

A list of all of the emergency orders made by Ontario to date is available here: https://www.ontario.ca/page/emergency-information#emergencyorders

PENALTIES FOR NON-COMPLIANCE:

Non-compliance with any emergency order made by Ontario may result in significant penalties:

(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;

(b) in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and

(c) in the case of a corporation, to a fine of not more than $10,000,000.

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CKL BUSINESSES AND SELF-EMPLOYED - OUR TOP 25 LIST OF FINANCIAL SUPPORT, OPTIONS AND RELIEF THAT MAY BE AVAILABLE TO HELP YOU DURING THE CRISIS

Here is a list of financial support, options and relief available to both essential and non-essential businesses and self-employed individuals, if eligible, in the City of Kawartha Lakes, as of April 6, 2020:

[1]      the Canada Emergency Wage Subsidy [75% reimbursement for ongoing wages for essential workers]

Our “Cheat Sheet” about the CEWS is available here: http://wardlegal.ca/31585663827857

[2]      if you do not qualify for the CEWS, apply for the Temporary Wage Subsidy [10%]

Our “Cheat Sheet about this alternative wage subsidy is available here: http://wardlegal.ca/31585663827857

[3]      speak to your broker about potential business interruption insurance coverage; join the contact list for the new class action in Ontario against insurers that have denied this coverage to business owners

More information from us is available here: http://wardlegal.ca/31585663827877

[4]      consider of a “Supplemental Unemployment Benefit Program” may be an option to you, topping up your employees’ EI benefits

More information from us is available here:  http://wardlegal.ca/31585663827859

[5]      the new $40,000 Line of Credit (the Canada Emergency Business Account); interest free

More information from us on this is available here: http://wardlegal.ca/31585663827865

[6]      consider “work-sharing” to reduce hours and/or avoid lay offs

More information from us about this is available here: http://wardlegal.ca/31582887996646

[7]      the new Canada Emergency Response Benefit (the “CERB”); $2,000 monthly

Our “Cheat Sheet” for the CERB is available here: http://wardlegal.ca/31585663827879

[8]      Business Development Bank funding:

The BDC has been given $10 billion from the federal government to assist small and medium-sized business with working capital and financing solutions.

More information from us about this is available here: http://wardlegal.ca/31585663827855

[9]      contact your financial institution for temporary, financial relief (mortgage and business loan deferrals, etc.):

The Bank of Canada has released an additional $300 million in capital to the primary banks, for these objectives:

  • postpone principal payments on mortgages
  • postponement of principal payments for business loans
  • access to additional working capital and loans
  • access to additional credit card limits and other principal postponements

More information from us about this is available here: http://wardlegal.ca/31585663827855

[10]    consider deferring your personal and business credit card payments temporarily

More information from us is available here: http://wardlegal.ca/31585663827867

[11]    consider deferring your corporate fax filings and tax payable, if any

More information from us about this is available here: http://wardlegal.ca/31585663827855

[12]    consider deferring your GST/HST remittances

More information from us about this is available here: http://wardlegal.ca/31585663827855

[13]    consider deferring your personal tax filing and tax payable, if any

More information from us about this is available here: http://wardlegal.ca/31585663827855

[14]    the Ontario-funded, one-time financial support payment for children and families:

They have offered a one-time payment of $200 per child up to 12 years of age, and $250 for those with special needs, including children enrolled in private schools.

They will also provide emergency child care options to support parents working on the front lines, such as health care workers, police officers, firefighters and correctional officers.

More information is available here: https://www.ontario.ca/page/get-support-families?fbclid=IwAR3AY4jo7i0bFZGES5sB58GE2bMloAh-Ta9VHYxFX2Ex28M_12KyJ-alpUE

[15]   the new electricity and energy costs:

They promise more affordable electricity bills for eligible residential, farm and small business consumers, by providing approximately $5.6 billion for electricity cost relief programs in 2020-21.  

They also promise to set electricity prices for residential, farm and small business time-of-use customers at the lowest rate, known as the off-peak price, 24 hours a day for 45 days to support ratepayers in their increased daytime electricity usage as they respond to the COVID-19 outbreak, addressing concerns about time-of-use metering.

The Ontario government represents it will provide $9 million in direct support to families for their energy bills by expanding eligibility for the Low-income Energy Assistance Program (LEAP) and ensuring that their electricity and natural gas services are not disconnected for nonpayment during the COVID-19 outbreak.

[16]  the new Employer Health Tax Exemption:

They will cut taxes by $355 million for about 57,000 employers through a proposed temporary increase to the Employer Health Tax (EHT) exemption.

  • the current exemption is $490,000
  • the 2020 exemption, retroactive to January 1, is increased to 1 million for employers with an annual payroll of less than 5 million

[17]   the new Corporate Tax Credit (Specific Regions):

They will help support communities or regions lagging in employment growth with a proposed new Corporate Income Tax Credit, the Regional Opportunities Investment Tax Credit.

[18]   consider deferring Canada Student Loan repayments for six months

More information from us about this is available here: http://wardlegal.ca/31585663827855

[19]   the reduced minimum Registered Retirement Income Fund [RRIF] withdrawals

[20]   the monthly Guaranteed Annual Income Supplement payments, if eligible, which are now doubled for the next six months

[21]   Ontario proper tax reassessment for 2020 has been deferred to 2021

[22]   Charitable and Non-Profit Organizations:

The Ontario government promises to enhance funding by $148 million for charitable and non-profit social services organizations such as food banks, homeless shelters, churches and emergency services to improve their ability to respond to COVID-19, by providing funding directly to Consolidated Municipal Service Managers and District Social Service Administration Boards who would allocate this funding based on local needs.

[23]   Tax Relief and Other Financial Incentives:

The government's plan also includes measures that will make available $10 billion in support for people and businesses through tax and other deferrals to improve their cash flows over the coming months, including:

  • making available $6 billion by providing five months of interest and penalty relief for businesses to file and make payments for the majority of provincially administered taxes;
  • over $1.8 billion by deferring the upcoming June 30 quarterly municipal remittance of education property tax to school boards by 90 days, which will provide municipalities the flexibility to, in turn, provide property tax deferrals to residents and businesses, while ensuring school boards continue to receive their funding; and
  • making available $1.9 billion by the Workplace Safety and Insurance Board (WSIB) allowing employers to defer payments for up to six months.

[24]   the BIG BANKS:

The Bank of Montreal, CIBC, National Bank of Canada, RBC Royal Bank, Scotiabank and TD Bank have made a commitment to work with personal and small business banking customers on a case-by-case basis to provide flexible solutions to help them manage through challenges such as:

  • pay disruption due to COVID-19; 
  • childcare disruption due to school closures; and
  • those facing illness from COVID-19

This support will include up to a six-month payment deferral for mortgages, and the opportunity for relief on other credit products.

More information is available here: Canada's Six Biggest Banks Take Decisive Action To Help Customers Impacted by COVID-19

https://cba.ca/canada-six-biggest-banks-take-decisive-action-to-help-customers-impacted-by-covid-19

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THE CERB (EMERGENCY SUPPORT) - TEST TO QUALIFY - AMOUNT YOU GET - TAXABLE? HOW TO APPLY - MORE INFORMATION TO HELP YOU

The Canada Emergency Response Benefit (the "CERB") is now available for residents of the City of Kawartha Lakes who qualify for this financial support. 

Here is an update on the CERB, including about how it affects employees' entitlements to Employment Insurance ("EI") benefits. 

WHAT IS CERB?

The CERB provides $2,000 a month for up to four months to individuals who have ceased working due to COVID-19. By contrast, EI benefits are 55% of normal weekly earnings, up to a maximum of $573 per week.

The CERB replaces the previously announced Emergency Care Benefit and the Emergency Support Benefit.

WHEN IS IT AVAILABLE

The online portal to apply for CERB will be available in early April 2020. The Federal Government has committed to making CERB payments within 10 days of application.

The CERB is paid every four weeks and available from March 15, 2020 until October 3, 2020.

WHO IS ELIGIBLE?

The CERB is available to individuals aged 15 or over who:

  • had income of at least $5,000 in 2019 or the 12 months preceding their application for the CERB;

  • cease working for reasons related to COVID-19; and

  • receive no income for at least 14 consecutive days within the four-week period for which the CERB is claimed, regardless of whether they are EI-eligible or not.

This includes residents in the City of Kawartha Lakes who are: 

  • unemployed due to termination of employment;

  • sick;

  • quarantined;

  • taking care of someone who is sick with COVID-19;

  • working parents who must stay home without pay to care for children who are sick or at home because of school and daycare closures;

  • still employed, but are not receiving income because of disruptions to their work situation due to COVID-19; and

  • contract workers and self-employed individuals who would not otherwise be eligible for EI.

An employee who quits voluntarily is not eligible for the CERB.

DO I APPLY FOR CERB OR EI? 

CERB is available to eligible individuals, whether they qualify for EI or not. 

The Federal Government has indicated that:

  • individuals who are already receiving EI regular and sickness benefits would continue to receive their benefits and should not apply for the CERB;

  • individuals who have already applied for EI and whose application has not yet been processed would not need to re-apply. It is not clear whether this means that the EI applications already in the system will continue to be processed in the normal course or be automatically "converted" into CERB applications; and

  • individuals whose EI benefits cease before October 3, 2020 could apply for the CERB once their EI benefits cease, if they are unable to return to work due to COVID-19.

It is not clear whether the CERB will replace EI entirely during the period of March 15, 2020 to October 3, 2020, as the Federal Government's announcement seems to suggest that individuals can continue to apply for EI.

CAN I GET A TOP-UP FROM MY EMPLOYER, TOO

No, at least not for now. 

Individuals are eligible for the CERB if they do not receive income from employment or self-employment during the days on which they have ceased working. It remains to be seen if the Federal Government will introduce regulations that would allow individuals to receive top-up benefits from their employers without eliminating or reducing the CERB, similar to the Supplemental Unemployment Benefit Program for EI.

IS IT TAXABLE

Yes, at least for now, but deductions will not be made at source. 

Therefore, individuals will receive the entire $2,000 every four weeks.

More details for CERB are being rolled out, including how to apply. 

Credit: 

Bonny Mak, Fasken, published Mar. 30, 2020 

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HOW MUCH REGULAR EI WILL I GET?- CAN I STILL WORK ON EI? YES, YOU CAN. HERE'S HOW IT WORKS, WITH EXAMPLES

You can work while you receive EI regular benefits, if your employer offers you work.

Here’s what you need to know:

  • you have to initially serve your one-week waiting period (for EI regular benefits only);  
  • your regular benefit will be reduced by 50 cents for every dollar of income you earn, up to your “earnings threshold”;
  • your “earnings threshold” is 90% of your regular earnings while you were employed; and
  • if you earn income beyond your “earnings threshold”, your regular benefit will be reduced dollar-for-dollar;

Here is an example:

You regularly earn $500 weekly during your employ of 40 hours weekly, which is $100 daily, gross. This is your “insurable earnings” for EI purposes.

EI’s rate for regular benefits is 55%.

So, you would be eligible to receive $275 weekly. If you earned $1,000 weekly, your benefit would be $550 weekly, and so on.

Your “earnings threshold” (i.e., 90% of your regular wage) would be $450.

Now, suppose that work an additional 8 hours weekly and, therefore, you earn an additional $100.

If so, per the one-half rule, $50 will be deducted from your regular EI benefit, leaving you with $225 from EI (plus the additional $100, directly from your employer), for a total of $325.

By working more, you can earn up to $450 weekly, or your “earnings threshold”.

You cannot earn more than your “earnings threshold” by working during your receipt of EI benefits, or your benefits will end.

Here is another example:

You work 40 hours weekly and earn $1,000, gross, in regular wages.

So, you earn $200 per day and would be eligible for EI regular benefits of $550 weekly.

Your “earnings threshold” would be $900 weekly (i.e., 90% of your regular wages).

If you work an additional 16 hours weekly, earning you an additional $400, your EI benefit will be reduced to $350, after deducting one-half of your additional $400 earnings.

In total, you earned $750 by working the additional hours ($400 additional earnings, directly from your employer, pus your $350 EI regular benefit).

You have not surpassed your “earnings threshold”, either.

 

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YOU'RE AN ESSENTIAL WORKER? STILL WORKING? WHAT ABOUT MY PRIVACY? CAN MY EMPLOYER TAKE MY TEMP? MAKE ME GET TESTED? ASK ME IF I HAVE SYMPTOMS? ANSWERS..........

If you continue to work in an “essential workplace”, as narrowed on April 2, 2020, your employer has a statutory duty to take reasonable steps to protect your health and safety, including during this pandemic.

To do so, an employer may wish to know personal information about you, particularly related to COVID-19. Those may relate to your health, whether you have had any symptoms or if you have had any health-related assessments.

Can my employer take my temperature? Make me provide a doctor’s note that I do not have the virus? Make me do a COVID-19 assessment?

All good questions. 

While the times are entirely unprecedented, including legally, privacy law in Ontario and federally continues to apply, including for employment relationships.

So, what can employers lawfully ask? Do you have to provide the information to your employer?

Below is an excellent overview of the issue to answer all of your questions and address your concerns:

1. Can I ask employees if they have any COVID-19 symptoms?

From a privacy law perspective, asking employees if they have any COVID-19 symptoms should generally be avoided if they are not displaying any symptoms. If, however, an employer has reasonable grounds to suspect that an employee potentially has COVID-19, then asking the employee if they are exhibiting any symptoms of the illness may be reasonable and appropriate. Different rules may apply depending on the type of workplace (e.g. long-term care homes where the health and safety of others is at greater risk).

Employers may want to consider implementing a communicable illness policy that requires employees to disclose if they have, or live with someone who has, COVID-19 symptoms. Under this policy, an employee meeting that criteria should be expected to inform their employer of symptoms through a confidential process, self-isolate at home, follow the advice of the relevant public health agency on treatment and recovery, and keep the employer updated.

2. Can I ask employees to provide a medical note from their doctor?

An employer is legally entitled to request a doctor's note to justify sick leave (subject to statutory restrictions in some provinces), but because the average doctor's office is currently not equipped to test for COVID-19, a doctor's note may have little to no value at this time.

Similarly, for an employee who has already tested positive for COVID-19 or was previously symptomatic, a doctor's note could indicate if they are no longer experiencing symptoms, but not whether they are free of COVID-19. The doctor's opinion would also be based on limited information since individuals who have or recently had symptoms of COVID-19 are being advised not to attend their doctor's office, meaning that it is likely the employee would not have been physically examined.

3. Can I ask employees to get tested before reporting to work?

Employers generally cannot force employees to undergo testing, and COVID-19 testing is not available on demand. Different rules may apply for certain employers in the healthcare sector.

If an employer has reasonable grounds to suspect an employee potentially has COVID-19, the employer may ask the employee to leave work and request that the employee contact the relevant public health agency and follow their directions on whether testing is appropriate.

4. Can I take employees' temperatures (for purposes of determining if they have a fever) before allowing them to attend work?

Taking employees' temperatures may potentially be a breach of the privacy rights and dignity rights of workers under applicable human rights and privacy legislation.

However, occupational health and safety (OHS) laws are important public welfare legislation. In some cases, the OHS laws may have a superseding provision that allows protecting the lives, health, and safety of both workers and members of the public to prevail over the competing values of privacy rights and dignity rights of employees.

Taking employees' temperatures may also be permitted if there is a bona fide reason, such as a demonstrated outbreak of COVID-19 in the workplace or in the community immediately surrounding the workplace, or depending on the nature of the industry (for example - food production).

Legal advice should be sought regarding whether and how best to proceed with temperature screening. Notice should be given and the tests should be done in accordance with an established protocol in order to minimize the intrusion on employees' privacy rights as much as possible.

Credit:

Lorene A. Novakowski and Kristin Woo, Fasken, Apr. 3, 2020 - https://www.fasken.com/en/knowledge/2020/04/3-covid-19-employee-privacy-issues

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LOCAL BUSINESS OWNERS - YOUR CHEAT SHEET FOR THE NEW $40,000 LINE OF CREDIT (CEBA) - WHAT YOU NEED TO KNOW

Small-and-medium-sized business owners in the City of Kawartha Lakes – an update:

THE CANADA EMERGENCY BUSINESS ACCOUNT (“CEBA”) – A $40,000 OPERATING LINE OF CREDIT:

Eligible businesses will receive a $40,000 line of credit loan for immediate financial support to cover short term operating expenses, payroll and other non-deferrable expenses which are critical to sustain business continuity.

Additional information:

  • it’s a $40,000 government‑guaranteed loan to help eligible businesses pay for operating expenses, payroll and other non-deferrable expenses which are critical to sustain business continuity;
  • until December 31, 2020, the CEBA will be funded as a revolving line of credit for $40,000;
  • after December 31, 2020, any outstanding balance on the revolving $40,000 line of credit will be converted into a non-revolving 5‑year term loan maturing on December 31, 2025, at which time the balance must be paid in full;
  • no interest applies until January 1, 2023;
  • beginning on January 1, 2023, interest accrues on the balance of the term loan at the rate of 5% per annum, payable monthly on the last day of each month;
  • if you pay 75% of the balance of the term loan (as at January 1, 2021), on or before December 31, 2022, the remaining balance of your term loan will be forgiven. For example, if your balance is $40,000 on January 1, 2021 and you repay $30,000 on or before December 31, 2022, the remaining $10,000 will be forgiven; and
  • if you do not repay 75% of the balance of the term loan (as at January 1, 2021) on or before December 31, 2022, the full loan balance and all accrued and unpaid interest will be due and payable on December 31, 2025.

TO QUALIFY FOR CEBA:

To enroll for CEBA through a specific bank:

  • that bank will need to be your primary financial institution; and
  • you will need a business deposit account with that bank.  

To qualify:

  • your business is a registered and operational business on or before March 1, 2020;
  • the person enrolling for the CEBA must have the ability and authority to bind the organization/business;
  • your payroll expense is between $50,000 and $1 million - to confirm this, you will be required to provide the following information:
    • your employer account number, as reported at the top of your 2019 T4 Summary of Remuneration Paid;
    • your employment income reported in Box 14 of your 2019 T4 Summary of Remuneration Paid; and
    • a copy of your 2019 T4 Summary of Remuneration Paid, if requested.
  • you will also need to agree to use funds from this loan to pay for operating costs that cannot be deferred, such as payroll, rent, utilities, insurance, debt payments and property tax.

Note:

The payroll expense above does not appear to restrict pay to the owner(s) of the business, such as wages, dividends, etc. Accordingly, it appears that not only employees, but owners, who are also employees, or who also act as employees, too, may be included to calculate the annual payroll expense. 

Note:

Sole proprietors do not qualify for CEBA. The banks will not facilitate CEBA for an individual; it is only available to business clients who have been a registered operation on or before March 1, 2020 with a business operating account.

More information for sole proprietors (individuals) and additional relief measures can be found here: https://www.canada.ca/en/department-finance/economic-response-plan.html.

ENROLLMENT FOR CEBA:

Your bank will likely require that you enroll online only.

The banks are attempting to accept online enrollments starting in the week of April 6, 2020.

Ask your bank to notify you when online enrollment is available.

You cannot enroll for the CEBA at more than one bank. Businesses must enroll for the CEBA at their primary financial institution, where they have an existing business banking account and cannot apply at more than one financial institution. Doing so may result in legal prosecution by the federal government.

PREPARING FOR YOUR ENROLLMENT:

To prepare for enrolling, you should:

  • update your email and contact information with your bank, which you could do online, if possible; and
  • find your 2019 T4 Summary of Remuneration Paid statement, which you can obtain from the Canada Revenue Agency, if necessary.  

WHEN THE LOANS WILL BE AVAILABLE TO YOU:

This remains uncertain, mostly because it depends on your bank’s ability to process your enrollment and open your revolving line of credit.

Enrollment is likely to be online only, so you should regularly check with your bank for when online application becomes available.

Your bank will contact you when your enrollment process is live. 

MULTIPLE BUSINESSES:

If you own or operate multiples businesses, each business entity may enroll for CEBA.

Each business must individually meet the eligibility criteria.

MULTIPLE OWNERS OF THE BUSINESS:

You must ensure that the person enrolling your organization has the authority to attest on behalf of the organization and bind the organization to the terms of the CEBA loan agreement.

INTEREST ON THE LOAN:

  • until December 31, 2020, the CEBA will likely be funded as a revolving line of credit for $40,000;
  • after December 31, 2020, any outstanding balance on the revolving $40,000 line of credit is likely to be converted into a non-revolving 5‑year term loan maturing on December 31, 2025, at which time the balance must be paid in full;
  • no interest applies until January 1, 2023;
  • commencing on January 1, 2023, interest accrues on the balance of the term loan at the rate of 5% per annum, payable monthly on the last day of each month;
  • if you pay 75% of the balance of the term loan (as at January 1, 2021), on or before December 31, 2022, the remaining balance of your term loan will be forgiven. For example, if your balance is $40,000 on January 1, 2021 and you repay $30,000 on or before December 31, 2022, the remaining $10,000 will be forgiven; and
  • if you do not repay 75% of the balance of the term loan (as at January 1, 2021) on or before December 31, 2022, the full loan balance and all accrued and unpaid interest will be due and payable on December 31, 2025.

WHEN TO START REPAYMENT ON THE LOAN:

You may start repaying the loan in part or in full at any time, but repayment is not required until December 31, 2025 at which time the entire loan and all accrued and unpaid interest is due.

IF YOU RECEIVE OTHER COVID-19 RELIEF:

If you are receiving other COVID-19 relief, such as the CERB, you may still apply for CEBA.

DEFERRING CREDIT CARD PAYMENTS:

Most of the banks, if not all, are accepting requests to temporarily waive the requirement that you pay your minimum payment on your credit card for up to two months. Some banks have set up new, online webforms to do so. If you need relief beyond the two-month period, you should contact your bank advisor for additional deferrals up to a total of six months.

However, requests are not guaranteed.

Deferred payments will not be reported to credit bureaus as missed payments.

During the deferral period, you will continue to accrue interest charges at your current annual interest rates and we will add those charges to your outstanding balance.

This may increase the outstanding balance on your credit card at the end of the deferral period.

Most banks, if not all, will not charge interest on accrued interest.

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COVID-19 - DEFERRING YOUR PERSONAL AND BUSINESS CREDIT CARD PAYMENTS - YES, TEMPORARILY AND WITHOUT PENALTY

As part of the federal Government's COVID-19 economic response plan, it has strongly encouraged the Big Banks to allow consumers to defer credit card payments, without penalty, at least temporarily. 

Currently, most of the banks, if not all, are accepting requests to temporarily waive the requirement that you pay your minimum payment on your credit card for up to two months.

Some banks have set up new, online webforms to do so.

If you need relief beyond the two-month period, you should contact your bank advisor for additional deferrals up to a total of six months.

However, requests are not guaranteed.

Deferred payments will not be reported to credit bureaus as missed payments.

During the deferral period, you will continue to accrue interest charges at your current annual interest rates and we will add those charges to your outstanding balance.

This may increase the outstanding balance on your credit card at the end of the deferral period.

Most banks, if not all, will not charge interest on accrued interest.

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CLARITY TO LOCAL BUSINESSES - WHETHER ESSENTIAL - WHAT YOU CAN/CANNOT DO - STEEP PENALTIES FOR NON-COMPLIANCE

As of March 24, all “non-essential” businesses must be closed [Regulation 82/20 of the Emergency Management and Civil Protection Act (the “Regulation”)].

The Regulation also permits “non-essential” businesses to allow temporary access for very specific purposes, which are explained below.

Essential businesses are:

  • supply chain
  • retail and wholesale of food
  • food services and accommodations
  • institutional, residential, commercial and industrial maintenance
  • telecommunications and IT infrastructure service providers
  • transportation
  • manufacturing and production
  • agriculture and food production
  • construction
  • financial activities
  • resources
  • environmental services
  • utilities and community services
  • communications
  • research
  • health care and social services
  • justice
  • business regulators and inspectors
  • other specific business activities.

For non-essential businesses, temporary access is permitted only:

  • to perform work at the business in order to comply with any applicable law
  • to allow for inspection, maintenance or repair
  • to allow for the provision of security services
  • to deal with critical matters related to the closure of the business
  • to access materials needed for the business to operate remotely.

Non-essential businesses may also operate remotely or provide services online or by telephone.

PENALTIES FOR NON-COMPLIANCE:

Non-compliance with the Regulation may result in significant penalties:

(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;

(b) in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and

(c) in the case of a corporation, to a fine of not more than $10,000,000.

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COVID-19 - LAID OFF? COLLECTING EI? CAN YOUR EMPLOYER 'TOP UP' YOUR WAGES WITHOUT REDUCING YOUR BENEFITS? YES - USE A "SUB" PLAN

Employers – if you have had to temporarily laid off any employees due to the pandemic, you may have the option of temporarily ‘topping up’ their earnings during the lay offs, above and beyond their Employment Insurance (“IE”) benefits.

You can do so by using a “Supplemental Unemployment Benefit Program” (a “SUB plan”).

You can enter an agreement with the federal Government to have a SUB plan.

Wage payments  made under a SUB plan are not earnings and, therefore, these payments will not be deducted from an employee’s EI benefits.

To use this option, employers must register the SUB plan with Service Canada before it can be implemented. When a plan is submitted to Service Canada, the officer will review and ensure it complies with the necessary requirements. If needed, officers can help employers develop and revise plans to meet the requirements.

Here are the basic requirements:

  • identifying which employees the SUB plan will cover by group or position (not by name);
  • including a start and end date for the SUB plan;
  • covering any period of unemployment because of temporary work stoppage, illness, injury, or quarantine;
  • requiring employees to apply for and receive benefits;
    • if an employee is not receiving benefits, they may still be eligible in certain circumstances.
  • confirming that the combined amount received from the plan and the employee’s weekly EI benefits is not more than 95 percent of the employee’s normal weekly earnings;
  • outlining the method used by the employer to finance the SUB payments, and confirming that payments are financed exclusively by the employer;
  • requiring any changes to be made in writing and submitted to Service Canada within 30 days of the change;
  • explaining that the employees have no vested rights to these payments other than during the applicable period;
  • providing that payments for other guaranteed annual renumerations, deferred renumerations or severance benefits are not affected by these payments;
  • your SUB plan must be approved by the government before it is implemented.

There may be other options and advantages for your SUB plan, too.

For example, employers may be able to require that employees return to work for a specified period after these supplemental employment benefits are paid.

Approval from the Service Canada SUB Program must be received before it is implemented.

More information is available here:

https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/ei-employers-supplemental-unemployment-benefit.html

 

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THE TWELVE RULES TO FOLLOW IF YOU MUST LEAVE YOUR HOME – WHEN BUYING ESSENTIAL GOODS – GAS; GROCERY SHOPPING; PHARMACY – CIVILITY AND RESPECT MUST PREVAIL – CONTAINMENT IS CRITICAL

If you must leave your home, despite the strong recommendations by our governments and health officials to do your best not to, nothing has changed in terms of how we interact with each other in our community. Respect and civility are essential, as has always been the case. The virus does not change that.

When you must leave, if so, such as to buy essential goods only, please adhere to these twelve, simple rules:

  1. follow the containment measures implemented by the essential service, including standing on the taped distance lines;
  2. always engage in the ‘hockey stick’ rule (i.e., physical distancing of two metres; six feet), including with essential workers;
  3. only one family member should attend the essential service, not more;
  4. only buy groceries, get gas, get your drugs, etc. no more than one per week; no social browsing or shopping – if possible, limit it to once bi-weekly;
  5. do not attend with your own bags or containers;
  6. minimize any chit-chat and social interaction with any other customers or essential service workers; no gathering; no idle talking;
  7. strictly adhere to all COVID-19 containment measures, including coughing, if necessary, into your elbow, washing your hands thoroughly immediately before and after you attend the essential service;
  8. minimize your time in the essential service – prepare and take a list in advance; no browsing;
  9. importantly, do not vent to the essential workers – they are endangering themselves to help you; none should be exposed to ridicule, criticism, complaints or general frustration;
  10. thank every essential worker you see, if possible – just a quick, “Thank you for everything” – no need to engage in a discussion;
  11. if possible, consider providing a tip to an essential worker and, if so: a) strictly physically distance; and b) provide the cash tip in an envelope and lay it at the counter only; and
  12. be civil, respectful, polite, courteous and cordial to everyone, particularly the essential workers, as you would at any time before the onset of this pandemic.

Altruism and comity must triumph; it is how we will overcome this crisis.

 

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UPDATE - NEW WAGE SUBSIDY - AVOID LAY OFFS - YOUR CHEAT SHEET TO KEEPING EMPLOYEES ON PAYROLL - GOVERNMENT WILL PAY 75% OF WAGES - AS OF MAR. 2, 2020

More details about the federal government's new wage subsidy, intended to encourage employers to avoid lay offs and keep employees on the payroll: 

NEW 75% CANADA EMERGENCY WAGE SUBSIDY – ALL EMPLOYERS [REFUND]:

  • all employees are eligible, except public sector;
  • 75 per cent wage subsidy on the first $58,700 normally earned by employees [a benefit of up to $847 per week];  
  • will be available a 12-week period, from March 15 to June 6, 2020;
  • government will refund the wage subsidy; not an adjustment to income tax source deductions, etc.
  • employer must show a drop in gross revenues of at least 30 per cent in March, April or May, compared to the same month in 2019;
  • non-profit organizations and registered charities affected by a loss of revenue, the government will continue to work with the sector to ensure the definition of revenue is appropriate to their circumstances;  
  • government is also considering additional support for non-profits and charities, particularly those involved in the front line response to COVID-19 - further details to follow;
  • an eligible employer’s entitlement to this wage subsidy will be based entirely on the salary or wages actually paid to employees;  
  • all employers would be expected to at least make best efforts to top up salaries to 100% of the maximum wages covered;
  • eligible will be able to access the subsidy by applying through a Canada Revenue Agency online portal, which should be available within three to six weeks;
  • does not replace the previously announced 10% wage subsidy for eligible employers;  
  • employers eligible for both subsidies for a period, any benefit from the 10% wage subsidy an employer receives is expected to reduce the amount available to that employer from the Canada Emergency Wage Subsidy;
  • more information here: https://www.canada.ca/en/department-finance/news/2020/04/government-announces-details-of-the-canada-emergency-wage-subsidy-to-help-businesses-keep-canadians-in-their-jobs.html

EXISTING 10% WAGE SUBSIDY [CREDIT; REDUCTION IN TAX PAYABLE]:

  • small-and-medium business that do not suffer revenue reductions;
  • still available for employers that do not qualify for the 75% subsidy;
  • 10% wage subsidy for the period March 18 to before June 20;
  • maximum subsidy of $1,375 per employee and $25,000 per employer;
  • when the subsidy is calculated, reduce the current payroll remittance of income tax (but not EI nor CPP);
  • employees’ pay and deductions remain unchanged; and
  • more information here: https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-wage-subsidy-small-businesses.html#h1

NOTE:

Employees will not be able to receive both the Canada Emergency Wage Subsidy and the Canada Emergency Response Benefit (CERB). 

You can apply for the CERB as of April 6.

NEW ONTARIO HELP FOR BUSINESSES TO SUPPLY PPE AND MEDICAL EQUIPMENT:

On April 1, 2020, the Ontario government announced the launch of a $50-million fund named the Ontario Together Fund.  

The purpose of the fund is to “help businesses provide innovative solutions or retool their operations in order to manufacture essential medical supplies and equipment, including gowns, coveralls, masks, face shields, testing equipment and ventilators.” 

The fund will be available to companies and organizations across the province. 

Businesses may submit proposals to the government through the Ontario Together portal.

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UPDATE TO SEPARATED AND DIVORCED CO-PARENTS - THE TEST YOU NEED TO MEET TO CHANGE THE EXISTING PARENTING ARRANGEMENTS DURING THE PANDEMIC - GENERAL CONCERN IS NOT ENOUGH

If any co-parent seeks to change the existing parenting arrangements arising from, or related to, COVID-19, the following test will be applied by the Family Court before the request will be considered:
[1] firstly, the co-parent must prove specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols;
[2] the co-parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
[3] both parents will be required to provide very specific and realistic time-sharing proposals, which fully address all COVID-19 considerations, in a child-focused manner; and
[4] Family Court judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.
General concern about exposure is insufficient.
This is a very good time for both custodial and access parents to spend time with their child at home - this is strongly recommended by the Family Court during this turbulent times.
No co-parent should attempt to take any tactical parenting advantage over the other co-parent related to the pandemic. The Family Court will be loathe to sanction any such conduct.
Guerin v. Guerin, March 31, 2020, FC-20-576
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SELF-EMPLOYED/BUSINESS OWNERS/NOT-FOR-PROFITS - WHAT IS BEING DONE RIGHT NOW TO HEP ME/US BY BOTH THE FEDERAL AND PROVINCIAL GOVERNMENTS AND THE BIG BANKS? YOUR ANSWERS, AS OF APR. 1, 2020

As of April 1, 2020, here is a summary of the financial and other assistance being offered to self-employed individuals and small-to-medium-size businesses in Ontario, including non-profit and charitable organizations:

THE FEDERAL GOVERNMENT:

Income Tax:

Businesses can defer payments, until after August 31, 2020, on any income tax amounts that become owing on or after March 18, 2020 and before September 2020. No interest or penalties will accumulate during this period. Nothing further needs to be done by businesses to access this relief.

The CRA has also indicated that it will not initiate any post assessment GST/HST or Income Tax audits in the next four weeks. 

Business Credit Availability Program:

The Business Credit Availability Program includes: [1] Canada Emergency Business Account; [2] Loan Guarantee for Small and Medium-Sized Enterprises; [3] Co-Lending Program for Small and Medium-Sized Enterprises. These three programs are expected to roll out April 20, 2020.

Additional capital is promised and soon-to-be-available to support businesses experiencing cash flow interruptions through the Business Development Bank of Canada (BDC) and Export Development Canada (EDC).

Businesses must contact their financial institution for an assessment of their situation, which will refer the business either to BDC or EDC if their financial need is greater than what can be offered in the private sector.

It is anticipated that BDC will evaluate each business on a case by case basis, and loans will only be approved for businesses that were financially viable except for the cash flow interruption caused by COVID-19.

The Canada Emergency Business Account will also provide interest-free loans of up to $40,000 to small business and not-for-profits.

To qualify, the organization must have paid between $50,000 to $1 million in total payroll in 2019.

Loan Guarantee for Small and Medium-Sized Enterprises and Co-Lending Program for Small and Medium-Sized Enterprises will also offer loans of up to $6.25 million.

Canada Emergency Response Benefit (“CERB”):

Self-employed individuals and others who would not otherwise be eligible for Employment Insurance (“EI”) would be covered by CERB. CERB will provide a taxable benefit of $2,000 a month for up to four months, and the portal to apply for the benefit will be available in early April.

CERB will also apply to any employees who are not receiving income because of disruptions to work.

You can more information from us about CERB here: http://wardlegal.ca/31585663827847.

Expanded Wage Subsidy:  

On March 28, the federal Government announced changes this program, including a 75 per cent wage subsidy, for up to three months, retroactive to March 15, 2020.

This wage subsidy is available to all companies, non-profits organizations that experience a drop of at least 30 per cent of its revenue.

The cap for the subsidy is 75 percent of $57,800, which is up to $847 each week.

There is no cap on the size of the company nor the number of employees.

You can more information from us about this wage subsidy here: http://wardlegal.ca/31585663827845.

GST/HST Deferment:

GST and HST payments, and duties and taxes on imports, will be deferred until June.

Work-Sharing Program:

Work-Sharing is an existing adjustment program designed to avoid layoffs when there is a temporary reduction in normal business activity for specific industries.

This is a three-party agreement between employers, employees and Service Canada, where an agreement is reached to reduce scheduled work and to share the available work.

Under the program, the maximum duration of Work-Sharing agreements is now 76 weeks.

You can find more information from us about working-sharing here: http://wardlegal.ca/31582887996646

THE ONTARIO GOVERNMENT:

Child-Related Assistance:

They have offered a one-time payment of $200 per child up to 12 years of age, and $250 for those with special needs, including children enrolled in private schools.

They will also provide emergency child care options to support parents working on the front lines, such as health care workers, police officers, firefighters and correctional officers.

Electricity and Energy Costs:

They promise more affordable electricity bills for eligible residential, farm and small business consumers, by providing approximately $5.6 billion for electricity cost relief programs in 2020-21.  

They also promise to set electricity prices for residential, farm and small business time-of-use customers at the lowest rate, known as the off-peak price, 24 hours a day for 45 days to support ratepayers in their increased daytime electricity usage as they respond to the COVID-19 outbreak, addressing concerns about time-of-use metering.

The Ontario government represents it will provide $9 million in direct support to families for their energy bills by expanding eligibility for the Low-income Energy Assistance Program (LEAP) and ensuring that their electricity and natural gas services are not disconnected for nonpayment during the COVID-19 outbreak.

Employer Health Tax Exemption:

They will cut taxes by $355 million for about 57,000 employers through a proposed temporary increase to the Employer Health Tax (EHT) exemption.

Corporate Tax Credit (Specific Regions):

They will help support communities or regions lagging in employment growth with a proposed new Corporate Income Tax Credit, the Regional Opportunities Investment Tax Credit.

Charitable and Non-Profit Organizations:

The Ontario government promises to enhance funding by $148 million for charitable and non-profit social services organizations such as food banks, homeless shelters, churches and emergency services to improve their ability to respond to COVID-19, by providing funding directly to Consolidated Municipal Service Managers and District Social Service Administration Boards who would allocate this funding based on local needs.

Tax Relief and Other Financial Incentives:

The government's plan also includes measures that will make available $10 billion in support for people and businesses through tax and other deferrals to improve their cash flows over the coming months, including:

  • making available $6 billion by providing five months of interest and penalty relief for businesses to file and make payments for the majority of provincially administered taxes;

  • over $1.8 billion by deferring the upcoming June 30 quarterly municipal remittance of education property tax to school boards by 90 days, which will provide municipalities the flexibility to, in turn, provide property tax deferrals to residents and businesses, while ensuring school boards continue to receive their funding; and

  • making available $1.9 billion by the Workplace Safety and Insurance Board (WSIB) allowing employers to defer payments for up to six months.

THE BIG BANKS:

The Bank of Montreal, CIBC, National Bank of Canada, RBC Royal Bank, Scotiabank and TD Bank have made a commitment to work with personal and small business banking customers on a case-by-case basis to provide flexible solutions to help them manage through challenges such as:

  • pay disruption due to COVID-19; 

  • childcare disruption due to school closures; and

  • those facing illness from COVID-19

This support will include up to a six-month payment deferral for mortgages, and the opportunity for relief on other credit products.

More information is available here: Canada's Six Biggest Banks Take Decisive Action To Help Customers Impacted by COVID-19

https://cba.ca/canada-six-biggest-banks-take-decisive-action-to-help-customers-impacted-by-covid-19

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NEED EMERGENCY FINANCIAL SUPPORT TO PAY RENT, BUY ESSENTIAL GOODS? UNEMPLOYED? DO NOT QUALIFY FOR EI OR CERB? DON'T GIVE UP - CONTACT YOUR MUNICIPALITY TO APPLY FOR SUPPORT

Do you need emergency financial support, but do not qualify for any federal payments (EI, CERB)?

Need to pay rent, or buy essential goods? Unemployed? Vulnerable? Living in poverty? 

Don’t give up – you can actually apply to the City of Kawartha Lakes (or your own municipality) for emergency support.

Emergency financial support may also be available to you, if you are experiencing financial crisis due to the virus pandemic, and who are unable to access other financial support, such as the new federal Government’s CERB.

This may include those of us who are vulnerable, such as living in poverty, homeless or those who are, or who have become, unemployed related to COVID-19.

Under the provincial Emergency Assistance program, if you have been laid off, told you cannot work or you are unable to work due to COVID-19, you may be entitled to receive up to $1,170 for a 48-day period.

Families with two children could be entitled to $2,000 for a 48-day period, if eligible.

Based on recent changes, you may also be entitled to access these benefits more than one time in any six-month period. 

This emergency benefit is intended to help with paying for needs, including food, rent, medicine, and other essential items.

If you do not qualify for EI regular or sickness benefits, you cannot access the new CERB, and you have limited access to other income/assets to assist you, you can apply for these emergency benefits, too. 

You should contact the City of Kawartha Lakes about this potential benefit and information on how to apply for your benefits.

To date, it does not appear that the City has made available an online application process.  You may have to apply by ‘phone.

The Ontario government is working on and trying to roll out a more streamlined and accessible application – it should be available soon from the province, too.

For now, and although the City does not appear to have information on its Web site about this potential benefit to you, you should contact the City’s Social Services division:

Toll free: 1-877-324-9870

Tel: 705-328-2875

You can also email that division here: https://www.kawarthalakes.ca/en/living-here/social-services.aspx

You can find more information here:

https://news.ontario.ca/opo/en/2020/03/changes-to-ontarios-emergency-assistance-program-in-response-to-covid-19.html

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